Court:DELHI HIGH COURT
Bench: JUSTICES Reva Khetrapal & Pratibha Rani
OM PRAKASH PODDAR Vs. RINA KUMARI On 23 July 2013
Respondent/wife did not care to cause appearance or any point of time expressed her willingness to live with appellant-husband as his wife — Wife is residing separately with her parents from petitioner. Ground of desertion stood established in this case — No ray of hope that parties have any intention to give another trial to their marriage. A decree of divorce is passed dissolving marriage of appellant with respondent with immediate effect.
The Appellant is aggrieved by the decision of the Family Court, Dwarka, whereby his prayer seeking dissolution of marriage and divorce under Section 13(1)(i-a) of Hindu Marriage Act was declined. However, the learned Judge, Family Court was of the view that a ground of desertion has been made out by the Appellant but in view of the peculiar facts and circumstances of the matter, instead of granting divorce, passed a decree of judicial separation under Section 10 of Hindu Marriage Act.
2. The Appellant filed a petition under Section 13(1)(i-a) of Hindu Marriage Act seeking dissolution of marriage by a decree of divorce pleading therein that the Appellant got married to the Respondent on 25.6.2004 at Katihar (Bihar). After marriage, the parties resided at the native place of the Appellant at Sonaili (Bihar) till 18.7.2004. Thereafter Appellant along with Respondent came to Delhi where he was living in a rented accommodation and was in private job. After reaching Delhi on 20.07.2004, the Respondent started misbehaving with the Appellant and his parents. She even used to shout at the top of her voice in presence of neighbours and relations causing embarrassment to the Appellant and his family. She was not happy with the standard of living enjoyed by the Appellant and used to taunt that the utensils, furniture or the accommodation were not even fit for servants and even her servants at Dhanbad had better crockery. She was also not interested in doing any household work. The Appellant, on the one hand, was attending to his old infirm father, whose one leg was amputated and chronically ill mother, on the other hand was even doing household work including kitchen work and sometime even had to leave empty stomach for his work. Due to non-cooperative and aggressive attitude of the Respondent which he has detailed in the petition, the Appellant lost his job. His father died on 15.11.2007 but despite being informed, even his cremation was not attended to by the Respondent and her family. Apart from that, Respondent used to threaten that she would commit suicide and teach him a lesson or commit his murder. The Appellant continued tolerating the behaviour of the Respondent in the hope that with the passage of time, things would become normal but the temperamental problem subsisted.
3. When the Respondent became pregnant during her stay with the Appellant, she without knowledge of the Appellant informed her father who took her back. Her father came with his return ticket and also with the ticket of Respondent and left Delhi on 15.4.2005. Respondent gave birth to a female child on 20.5.2005 but the Appellant was not allowed to see the child nor his request to the Respondent to allow them access or come to Delhi to enable him and his family to see the face of his child, was acceded to. Rather the Appellant and his family were threatened with dire consequences.
4. It is further pleaded that all the efforts by the Appellant to lead a peaceful matrimonial life could not succeed as he could not provide the luxuries of life to the Respondent and refused to agree to the demands by the Respondent to ask for a share in the ancestral property to provide her the luxuries. Pleading that the behaviour and attitude of the Respondent has caused him tremendous mental pain and agony resulting in mental trauma and mental imbalances, the Appellant alleged he being the only son of his mother, who is critically ill, finds it difficult to continue to suffer in this manner endlessly. The parties are not in contact with each other since 15.4.2005. The Respondent has deserted him since then. He prayed for a decree of divorce as the marriage has broken irretrievably.
5. Vide impugned judgment dated 16.12.2011 the learned Judge, Family Court though observed that cruelty was not proved, was of the view that a ground of desertion has been made out by the Appellant yet passed a decree of judicial separation under Section 10 of Hindu Marriage Act in view of the peculiar facts and circumstances of the matter.
6. The Appellant Om Prakash Poddar, by filing this appeal through Delhi High Court Legal Service Committee, has prayed before this Court to grant him a decree of divorce on the ground of desertion as it was also pleaded as ground for divorce and held to be proved by the Family Court.
7. Notice of the appeal was sent to the Respondent. Service of affidavit alongwith track record of the speed post sent to the Respondent has been placed on record. The Respondent was served with the notice of appeal but preferred not to appear in person or through Counsel.
8. The grievance of the Appellant is that before the Family Court also the Respondent was duly served and she also appeared in person with Counsel on 9.2.2011. She preferred not to file any written statement and contest the case. He argued that to prove cruelty and desertion by the Respondent, he filed his own affidavit as well of his mother, sister and a friend. It has been urged by the Appellant that the learned Judge, Family Court preferred to disbelieve the contents of the affidavit on the ground that the statement of his mother, sister and friend were identical and similar to the statement, given by the Appellant in his affidavit. The Family Court held that Appellant failed to prove the cruelty for the reason the averments regarding cruelty made in the petition find no place in the affidavit Ex. PW1/A.
9. The Appellant submitted that lack of proper legal assistance at all stages has caused this situation and even today he is arguing in person without knowing the legal technicalities.
10. The Appellant has contended that right from the day of marriage he was kept under fear by the Respondent and her family. Even after coming to Delhi, the conduct of the Respondent was so cruel that apart from attending his job, he was doing kitchen work, other household job and taking care of his old and ageing parents. Ultimately he had to lose the job because of the circumstances created by the Respondent. The Appellant has further contended that his father died untimely and his mother is also critically ill. He being the only son, had tough time and with totally non-cooperative and aggressive attitude of the Respondent not only he had lost his father but also his job. The Appellant has urged that he has been able to bring on record that after leaving the matrimonial home on 17.4.2005 with her father, despite his best efforts and communication as well the personal visit to bring her back, she has refused to come and join his company. Thus, the parties are not having any relationship as husband and wife w.e.f. 17.4.2005 when she left Delhi alongwith her father. The Appellant has submitted that the matrimonial relationship having come to an end and the Respondent having deserted the Appellant for the last about eight years, learned Judge, Family Court should have granted a decree of divorce instead of judicial separation. The Appellant has prayed that a decree of divorce may be passed on the ground of cruelty and if for some reason, the Court feels that cruelty does not stand proved, then on ground of desertion, which stands established.
11. We have considered the submissions made by the Appellant and perused the record. The Appellant filed a petition seeking dissolution of marriage and divorce under Section 13(1)(i-a) of Hindu Marriage Act but in the petition, divorce was sought not only on the ground of cruelty i.e. under Section 13(1)(i-a) but also on the ground of desertion which is a ground for divorce under Section 13(1)(i-b) of Hindu Marriage Act. The only defect which could be noticed in the petition was that in the title, specific provision i.e. Section 13(1)(i-b) of Hindu Marriage Act was not mentioned. While arriving at the conclusion that the Appellant has been deserted by the Respondent, the learned Judge, Family Court in paras 23 to 27 of the impugned judgment observed as under :
“23. The respondent, after appearing in the matter chose not to appear and she even did not file any WS, which shows that she is not interested in keeping any kind of relation with the petitioner and it also appears that she intends to bring the cohabitation permanently to an end.
24. She has also not made any kind of effort to join the matrimonial home at Delhi and she is staying with her father in Bihar for the last more than six years. No reasonable ground or excuse has been coming from the side of the respondent to show as to why she had decided not to live with the petitioner in the matrimonial home.
25. In the absence of any such reason, it shall be construed that she had left the matrimonial home without reasonable cause or excuse to stay away from the petitioner. On the other hand, it shall be taken that the respondent is intending to bring the matrimonial relationship to an end and she is not at all interested in continuing any relationship with the petitioner as husband and wife.
26. It is therefore clear that the respondent has deserted the petitioner for more than two years immediately preceding the presentation of the petition and she has severed all the matrimonial relationship with the petitioner.
27. Though, no specific ground of desertion has been taken by the petitioner in the petition, yet a ground of desertion has been made out by the petitioner. However, in the peculiar facts and circumstances of the matter, a decree of judicial separation is passed in favour of the petitioner and against the respondent under the provisions of Section 10 of the Hindu Marriage Act.”
12. Legal position is well settled that while considering any prayer, merely because a wrong provision has been cited/all provisions have been quoted, the Court has the power to look into the sum and substance of the petition and grant the relief. A party taking recourse under a wrong provision of law but pleading all the grounds available under the law cannot be deprived of his right to claim the relief despite the fact that correct provision has not been cited or wrong provision has been quoted. In the case of Management of Borpukhurie Tea Estate v. The Presiding Officer, Industrial Tribunal, Assam & Anr., (1978) 2 SCC 667, the Supreme Court observed that:
“8. It is equally important for the Courts to remember that it is necessary sometimes in appropriate cases for promotion of justice to construe the pleadings not too technically or in a pedantic manner but fairly and reasonably.”
13. Perusal of the impugned judgment shows that learned Judge, Family Court was of the view that no specific ground of desertion has been taken in the petition. We find this observation contrary to the record as in paras 30 to 42, 55 to 57, 77, 78 and 80 of the petition, the Appellant has specifically pleaded desertion. Learned Judge, Family Court has dealt with the ground of desertion in para 20 and 21 of the impugned judgment and referred to the statement of the Appellant that he had been living separately from the Respondent w.e.f. 17.4.2005 (the day she left Delhi along with her father) and since then, there had been no cohabitation between them. He has also taken note of admission by the Respondent in the petition filed by her in Bihar under Domestic Violence Act wherein she claimed to be living separately from the Appellant w.e.f. 17.4.2005. Therefore, both the parties admit that since 17.4.2005 they had no relationship as husband and wife and had been residing separately since then.
14. The learned Judge, Family Court has also considered this aspect while arriving at the conclusion that though the Appellant failed to prove cruelty to seek divorce, from the record it could be established that Respondent intended to bring the matrimonial relationship to an end and was not interested in continuing any relationship with the Appellant as his wife. Learned Judge, Family Court concluded that the Respondent has deserted the Appellant and has severed all matrimonial relationship with him, thus a ground of desertion has been made out by the petitioner.
15. The grievance of the Appellant is restricted to the extent that despite holding that ground of desertion to seek divorce has been made out, learned Judge, Family Court preferred not to grant a decree for divorce without specifying any reason/peculiar facts and circumstances in which a decree of judicial separation has been passed.
16. From the record of Family Court, we note that the parties have been residing separately since 17.4.2005. The Respondent, though appeared with Counsel before the Family Court on 9.2.2011, thereafter preferred not to file even the written statement or contest the case. Even after passing of decree of judicial separation in the year 2011 and receiving notice of this appeal, Respondent did not care to cause appearance or at any point of time expressed her willingness to live with the Appellant as his wife. Thus, the parties are living separately for the last about 8 years without any scope of reconciliation.
17. In the case of Naveen Kohli v. Neelu Kohli, 128 (2006) DLT 360 (SC)=III (2006) SLT 43=I (2006) DMC 489 (SC)=II (2006) CLT 100 (SC)=(2006) 4 SCC 558, the Supreme Court has dealt with in-depth whether in a case of irretrievable breakdown of marriage, the parties living separately for long years and the matrimonial bond being damaged beyond repair, should the spouses be made to remain tied with each other. The observations made in this regard by the Supreme Court in paras 72 to 76 of the report are as under:
“72. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.
73. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce Courts are presented concrete instances of human behavior as bring the institution of marriage into disrepute.
74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.”
18. Section 13(1)(i-b) of Hindu Marriage Act, 1956 enables the husband and wife to seek decree of dissolution of marriage on the ground that other party to the marriage has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Explanation to the said section clarifies that the desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by other party to the marriage.
19. In the present case, admittedly the wife is residing separately with her parents from the petitioner w.e.f. 17.4.2005 and there had been no cohabitation between the parties after that. When the petitioner presented the petition seeking divorce on the ground of cruelty and also desertion, period of more than five years had already expired. The only question, therefore, was whether this was a case of desertion by a wife.
20. The factum of the parties being living separately w.e.f. 17.4.2005 also stands proved from the petition filed by the Respondent Ex. PW1/3 on the basis of which learned Judge, Family Court arrived at the conclusion that the ground of desertion stood established in this case.
21. In the case of Lachman Utamchand Kirpalani v. Meena Alias Mota, AIR 1964 SC 40 the Supreme Court observed that:
“Abandonment of one spouse by the other without that other’s consent, and without reasonable cause. It is a total repudiation of the obligations of marriage.”
22. In this regard, we are also of the view that learned Judge, Family Court has correctly arrived at the conclusion that the Respondent/wife had left the Appellant/husband’s house without any justification and refused to resume cohabitation.
23. The issue that now survives is only to the extent whether the appellant should be granted a decree of divorce.
24. An alternative relief under Section 13-A of Hindu Marriage Act can be granted on some of the grounds mentioned in Sub-section (1) of Section 13 provided it is found just to do so in the facts and circumstances of the case. This power has to be exercised to advance the cause of justice when the Court is of the view that parties need to be given a chance.
25. We are unable to notice any peculiar fact or circumstance to justify the order granting judicial separation instead of divorce in this case by the Family Court despite noticing the admission by the Respondent that she had been living separately from her husband since 17.4.2005 and her subsequent conduct that she cared not to even file the written statement to controvert the allegations made in the petition. In our considered opinion, in the backdrop of the fact that the parties are living separately since 17.4.2005 i.e. for more than eight years now (for about six years at the time of passing the impugned judgment), the discretion exercised by learned Judge, Family Court by passing a decree of judicial separation without specifying any circumstance/reason for such a recourse, was disastrous to both the parties.
26. We do not see any ray of hope after passage of 8 years that the parties have any intention to give another trial to their marriage. It stands established that the marriage between the parties stands broken irretrievably.
27. We affirm the finding of learned Judge, Family Court that a ground of desertion has been made out by the petitioner (Appellant) but set aside the decree of judicial separation. A decree of divorce is passed dissolving the marriage of the Appellant with the Respondent with immediate effect.
28. Appeal stands allowed.
29. No costs.
30. Record of Family Court be sent back along with copy of this order.