Naresh Arora vs Jyotsna Arora
2009 Latest Caselaw 2025 Del

50
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +     FAO No.380/2002

                                Date of Decision: 13th May, 2009
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      NARESH ARORA                      ..... Appellant
                         Through : Mr. P.N. Misra, Sr. Adv. with
                                   Mr. K.N. Tripathi, Adv.

                  versus

      JYOTSNA ARORA                   ..... Respondent
                               Through :     None.


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

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

2.      To be referred to the Reporter or not?      YES

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

                         JUDGMENT (Oral)

1. The appellant has challenged the judgment of the

learned Trial Court whereby the learned Trial Court has

dismissed the appellant's petition under Section 13(1)(ia) of

the Hindu Marriage Act for dissolution of marriage on the

ground of cruelty.

2. The parties got married on 30th August, 1999. It was

the second marriage of the appellant. The appellant's first

wife expired on 20th May, 1998 leaving behind a son about

one year old at that time. The appellant decided to remarry

considering that one year old child would need the care of

the mother. The parties came in contact with each other

after the appellant gave advertisement in the national

newspaper where it was specifically mentioned that the

appellant was looking for a woman who can given motherly

treatment to the child.

3. According to the appellant, soon after the marriage, the

respondent had an indifferent and hostile attitude towards

the appellant, the child as well as the parents of the

appellant. The appellant averred three specific incidents in

the petition and also led evidence with respect to the same.

4. The first incident is of around 12/13 October, 1999

when the respondent abused the appellant's mother saying

"yeh kutia marti kuin nehi" and hurled a shoe at her. The

second incident is of 16/17 June, 2000 when the appellant

had gone to his friend's place along with his son where the

respondent abused the child by saying "kute ka bacha" and

also beat the child mercilessly. The third incident is of 10 th

August, 2000 when the respondent refused to feed and bath

the child and gouged his genitals, which caused pain to the

child and upon the appellant's protest, the respondent

threatened to commit suicide.

5. The respondent did not appear and contest the petition

and was proceeded ex-parte by the learned Trial Court on

30th March, 2001. The respondent has chosen not to appear

and contest this appeal as well.

6. The appellant produced two witnesses before the

learned Trial Court. The appellant himself appeared as PW1

and his friend Ramesh Malhotra appeared as PW2. PW1

deposed as to the aforesaid three incidents. However, PW2

deposed with respect to the incidents of 12/13 October, 1999

and 16/17 June, 2000.

7. The learned Trial Court held that there is contradiction

in the statement of PW1 and PW2 with respect to the

aforesaid incidents of 12/13 October, 1999 and 16/17 June,

2000 and, therefore, both these incidents cannot be said to

have occurred at all and the testimony of the appellant was

not trustworthy.

8. I have perused the statement of PW1 and PW2. The

incident of 12/13 October, 1999 occurred at the residence of

the appellant where PW2 had visited and the appellant was

not present at that time. PW2 informed the appellant on

telephone about the incident which is recorded in the

statement of PW2. The statement of PW1 relating to the

incident of 12/13 October, 1999 is based on the telephonic

call made by PW2 to PW1 relating to the incident. There is

no contradiction in the statement of PW1 and PW2.

9. With respect to the incident of 16/17 June, 2000, the

appellant along with the respondent and the child had visited

PW2 at his residence and both PW1 and PW2 were present at

the time of the said incident.

10. With respect to the incident of 10th October, 2000, the

learned Trial Court has not given any finding whatsoever.

11. The appellant has successfully proved the three

incidents of cruelty stated above. There is no rebuttal or

contest by the respondent. The findings of the learned

Tribunal are erroneous and, therefore, liable to be set aside.

12. The parties are living separately since 19th December,

2000. The appellant has not condoned the acts of cruelty.

13. The appeal is accordingly allowed. The impugned

judgment of the learned Trial Court is set aside. The petition

of the appellant under Section 13(1)(ia) of the Hindu

Marriage Act, 1955 is allowed and the decree of divorce on

the ground of cruelty under Section 13(1)(ia) is passed in

favour of the appellant and against the respondent. The

marriage is dissolved by a decree of divorce.

14. No costs.

J.R. MIDHA, J

MAY 13, 2009 aj