Vipin Kumar Sharma vs Mithlesh Kumari
2009 Latest Caselaw 457 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     MAT.APP.No.106/2008

                          Date of reserve: 28th January, 2009
%                         Date of decision: 9th February, 2009

VIPIN KUMAR SHARMA                      ..... Appellant
                  Through : Mr. C.C.S. Tomar, Adv.

                         versus

MITHLESH KUMARI                               ..... Respondent
                         Through : None.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?

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


                            JUDGMENT

1. The appellant has challenged the judgment and decree

dated 30th July, 2008 passed by learned Additional District

Judge whereby the petition for divorce under Section 13(1)(ia)

and (ib) of the Hindu Marriage Act, 1995 has been dismissed.

2. The appellant was married to the respondent on 8 th

February, 1985 according to Hindu Marriage rites and

ceremonies. Three children were born out of this wedlock

who are now aged about 18,19 and 20 years.

3. The respondent initially contested the petition before the

learned Trial Court by filing the written statement on 9 th May,

2007. However, she subsequently stopped appearing and was

proceeded ex-parte on 4th January, 2008. She again appeared

MAT.APP.NO.106/2008 on 30th May, 2008 and joined the proceedings and also filed

an application for setting aside the ex-parte order but the

same was withdrawn on 29th July, 2008.

4. The learned Trial Court has dismissed the petition on the

ground that the appellant has not been able to prove the acts

of cruelty against the respondent. The learned Trial Court has

held that the conduct charged as cruelty against the

respondent is in the nature of normal tits and bits of the

matrimonial life and do not constitute cruelty to get a decree

of divorce. The learned Trial Court further held that the

appellant had filed petition for restoration of conjugal rights

which was dismissed on the ground that the appellant had not

approached the Court with clean hands. In the said judgment,

it was also held that the appellant was responsible for

desertion and had no bonafide will to join the respondent.

The learned Trial Court also held the petition to be barred by

Section 23 of the Hindu Marriage Act as the appellant was

apparently trying to take advantage of his own wrongs.

5. I have gone through the impugned judgment and the

Trial Court record. I agree with the findings of the learned

Trial Court. The appellant has not been able to prove the

cruelty.

6. The learned counsel for the appellant submits that the

appellant has lodged an FIR against the respondent. The

lodging of the FIR per se cannot be said to amount to cruelty

till the adjudication by the Competent Court with respect to

MAT.APP.NO.106/2008 veracity of the averments made therein. It is not disputed

that the matter is still sub-judice.

7. There is no merit or substance in the appeal which is

hereby dismissed.

J.R. MIDHA, J FEBRUARY 9, 2009 s.pal

MAT.APP.NO.106/2008