Delhi High Court
Vijay vs Usha on 19 May, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 19.05.2014
+ MAT. APP. No.12 of 2014
CM No.8660 of 2014 (for condonation of delay in filing the Appeal)
CM No.8661 of 2014 (for condonation of delay in re-filing the Appeal)
VIJAY ...... Petitioner
Through: Mr. Hameed S. Shaikh, Adv.
versus
USHA ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This petition impugns an order dated 15.1.2011 whereby the
petitioner‟s petition under Section 13(1)(i-a) of the Hindu Marriage
Act, 1955 (for short „HM Act‟), seeking a decree of divorce was
dismissed. The petitioner‟s case was that his marriage with the
respondent was solemnised on 23.11.1999 at Palam, New Delhi. The
parties lived together for some time and a child was born from the
wedlock; that from the very beginning the respondent/wife, refused
to stay in the matrimonial home and treated him with cruelty on
numerous instances making his life and that of his parents
miserable. The grounds of cruelty raised by him were that she
would state that she was forced to marry him against her wishes;
that she never liked the petitioner; that she would constantly
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impress upon him to divorce her; that she was uncooperative and
indeed had an extra-marital relationship and her character was always
questionable; that because of her persistent uncooperative attitude, he
suffered extreme mental tension, leading to deterioration in their
relationship. However, he continued to bear it all because of his
mother‟s advise that with the passage of time things would settle
down since these were signs of her immaturity. But, he alleges, his
wife‟s acts of cruelty continued including the occasion when she
refused to cook any food for the petitioner and his family members;
that she quarrelled with his mother for vegetables and indeed abused
and shouted at her and threatened his parents with dire consequences;
that she would shut the door of her room and on one occasion she cut
her hand with a blade and had to be rushed to a doctor for immediate
medical help; that she deprived him of physical relations which
constituted the worst kind of cruelty and continued to insult him in
the most foul language in front of his parents and relatives.
Therefore, in order to maintain certain peace and harmony and to
save his matrimonial home, he shifted out of his parents‟ house to
another house on rent. Even then his wife‟s attitude did not change.
Indeed it became worse. The petitioner/husband contended that he
was a Government servant and had been allotted a Government
accommodation where the petitioner and his wife were living but due
to his wife‟s cruel attitude he had to shift out of that place and live
elsewhere. However, later he shifted to another Government
accommodation in Timarpur. He submitted that on occasions his wife
would beat him up and make him a laughing stock before his friends
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and on occasions she would threaten the petitioner and his family of
committing suicide and have them put behind bars. The petitioner
contended that on various specific dates, the wife had treated him
with cruelty, in particular:
i. On 24.10.2006 when she was at her parents‟ home, she tried to
commit suicide and had to be admitted to Safdarjung Hospital.
When the petitioner and his parents rushed to the hospital they
were shouted at by his wife‟s family members who blamed
him for the respondent‟s acts. They also accused the petitioner
of making immoral demands on his wife. They threatened him
that he would be arrested, thus, causing him much distress and
numerous restless nights.
ii. That despite having left at her parental home on 2.5.2009, the
wife did not reach her matrimonial home. A search was
initiated by the husband and his family but she was not
traceable. Upon her arrival at the husband‟s house on the next
morning, she created a scene and did not disclose where she
spent the night, thus, making the petitioner a laughing stock
amongst his friends and relatives and causing him further
mental anguish and tension, leading to a state of depression.
iii. On, 10.10.2006, the day of Raksha Bandhan, the petitioner had
left his wife at her parents‟ home with the understanding that
he would bring her back in the evening. However, she refused
to return back for another two (2) months. On the day of her
return it was the occasion of Karva Chauth but the wife went
straightway into her room to sleep. Upon being woken up by
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her husband and other ladies, she stated that she had no
husband and refused to put sindoor or observe other
cultural/traditional observances normally associated with the
occasion. Again the husband was humiliated because of the
cruel and indecent behaviour of his wife.
iv. On another occasion while returning from the temple she
walked off to a PCO booth and kept speaking with somebody.
Upon being asked she stated that she was speaking with her
boyfriend. She threatened the petitioner with creating a scene
if he insisted with his queries. Thereafter she used to talk with
some unknown person and whenever the petitioner asked for
the details he was threatened with dire consequences by the
wife.
v. That on 20.2.2009 when the petitioner/husband‟s parents
returned to the house from a medical check-up they found two
unknown persons in the house, who were sitting in an indecent
manner with the respondent. She told the parents that the two
were her friends but the parents were not convinced and were
indeed suffered such a deep shock that two days later the
petitioner‟s father died of heart failure on 22.2.2009. Even
this colossal tragedy made no difference to the
respondent/wife, who continued with her painful and cruel
behaviour towards the petitioner and his family. Neither did
she show any sympathy to the petitioner on the sudden demise
of his father.
vi. That on 2.5.2009, the neighbours had seen two boys entering
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her matrimonial home at about 10:00 p.m., at a time when the
petitioner‟s mother was not feeling well because of the recent
demise of the petitioner‟s father, but the respondent-wife never
bothered to take care of the grieving mother-in-lawher.
vii. That they had no physical relationship for the last more than
two (2) years.
viii. That on 16.7.2009, the petitioner even offered divorce by
mutual consent but she refused. Instead she threatened the
petitioner with dire consequences. Hence, the decree of
divorce was sought on the grounds of cruelty.
2. The respondent-wife, however, refuted each of the arguments and
denied the allegations as being untrue, concocted and fabricated.
3. The Trial Court after considering the pleadings of the parties framed
the following issues:
"1. Whether the respondent has treated the petitioner with
cruelty, as alleged after the solemnization of the marriage?
OPP
2. Whether the petitioner is entitled to a decree of
dissolution of marriage under Section 13(1)(ia) of the HMA?
OPP
3. Relief."
4. The Trial Court found that despite several opportunities having been
accorded the petitioner/husband failed to enter the witness box or to
produce any evidence. Indeed he did not even file any affidavit in
support of his own petition. Therefore, his evidence was closed on
13.1.2011. In the absence of plaintiff‟s evidence the respondent did
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not lead any evidence either. Furthermore the petitioner/husband did
not lead any arguments despite opportunities but the respondent
argued against the petition. The Trial Court found that in the absence
of any evidence the petitioner had failed to substantiate any
allegation and to discharge the onus to prove the said issue. Hence
there was no case of any divorce being granted to him on the ground
of cruelty.
5. The aforesaid narration of the case clearly shows that the husband
had established no case before the Trial Court. A divorce is not for
the asking. Society rests strongly upon the institution of marriage.
Irretrievable breakdown of marriage is not yet recognised as a
statutory ground for dissolution of the marriage. The deliberate fault
of which the other spouse is accused, must be proved for it to be
considered as cruelty as per the jurisprudence on the subject. The
husband led no evidence, he did not prove his case. Nor did he argue
the case. Therefore the only order which could be passed was to
dismiss his divorce petition. This Court find that the impugned order
was passed on 15.1.2011 and the present petition has been filed after
1094 days. This is an unexplained delay and shows a casual
approach towards the case. There is no merit in the petition and the
same is accordingly dismissed.
MAY 19, 2014 NAJMI WAZIRI, J.
b'nesh
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