Delhi High Court
A S vs S J on 28 March, 2019
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 28.03.2019
+ MAT.APP.(F.C.) 334/2018
AS ..... Appellant
Through: Ms. Nidhi Mohan Parashar, Mr. Umang
Kumar Singh & Mr. Pratyaksh Sharma,
Advocates
versus
SJ ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J. (ORAL)
CM APPL. 54267/2018
1. This is an application seeking condonation of delay. None is present
to oppose the prayer made in the application. For the reasons mentioned in
the application, the same is allowed and the delay is condoned.
2. The application stands disposed of.
CM APPL. 54268/2018
3. This is an application filed by the appellant seeking to bring on record
additional facts by way of an affidavit describing various incidents of cruelty
inflicted upon her by the respondent. None has appeared for the respondent
and there is no opposition to the prayer made in this application.
4. For the reasons mentioned in the application, the same is allowed.
The affidavit is taken on record.
5. The application stands disposed of.
MAT.APP.(F.C.) 334/2018
6. Respondent has been served through publication. Despite service,
none is present on behalf of the respondent. We thus proceed to hear the
appeal in the absence of the respondent.
7. This appeal is directed against the judgment dated 23.08.2018 by
which a petition seeking divorce on the ground of cruelty under Section
13(1)(ia) of the Hindu Marriage Act, has been dismissed.
8. In this case, marriage between the parties was solemnised on
18.11.2015. No child is born out of the said wedlock.
9. Despite service, the respondent has chosen to stay away from the
proceedings. The respondent did not appear even before the Family Court
and was proceeded ex-parte by an order dated 18.01.2018. Thereafter, the
appellant herein filed her affidavit by way of evidence.
10. Learned counsel for the appellant submits that the only ground on
which the petition for divorce has been dismissed by the Family Court is that
the same lacks material particulars. It is submitted in para 5 of her affidavit
by way of evidence, the appellant had stated that soon after the marriage, the
respondent started taunting her, that he had shown mercy on her by marrying
her, otherwise a minimum sum of Rs. 5 to 6 lacs would have been spent on
the marriage of the appellant if the marriage would have been arranged with
a person like the respondent, who was earning approximately Rs. 25000/- to
Rs. 30,000/- per month. She submits that since the date of marriage has
already been mentioned in the petition, the expression, „after few days of
marriage‟, has to be given a reasonable interpretation. According to her, she
has given a specific instance of money being demanded by the respondent in
the month of February 2016, which the appellant was forced to arrange from
her grandfather, and thus, this would fall within the broader definition of
"cruelty" and since the year and month have been given, it cannot be said
that the petition lacks material particulars.
11. Additionally, it is contended that all other instances which have been
mentioned remain uncontested and have not been rebutted in any form and
thus are deemed to have been admitted. It may be noted that during the
present proceedings as well, the respondent could not be served by way of
ordinary means, and was served through publication. A copy of the
newspaper has been placed on record. Even now he has chosen to remain
absent and not contest the appeal.
12. Counsel also submits that the husband had filed a petition for habeas
corpus knowing fully well that she had left the matrimonial home on account
of ill-treatment meted out to her by him, which, according to her, is also a
ground for cruelty.
13. We have heard the learned counsel for the appellant and carefully
examined the order passed by the Family Court and the affidavit by way of
evidence, which remains unrebutted. Two specific instances have been
brought out in the affidavit of evidence. The first instance pertains to a few
days post marriage and next one is of February 2016, when demand of
money was made and, in fact, money was received from the grandfather and
paid to the respondent. There is no rebuttal to the averments in the affidavit
filed by the appellant, and therefore, her testimony on the allegations of
cruelty remains unimpeached.
14. Accordingly, we are of the view that the appellant has made out a case
of cruelty within the definition of Section 13(1)(ia) of the Hindu Marriage
Act.
15. The appeal is thus allowed. The marriage between the parties is hereby
dissolved under Section 13(1)(ia) of the Hindu Marriage Act.
16. Let a decree of divorce be prepared in favour of the appellant.
G.S.SISTANI, J
JYOTI SINGH, J
MARCH 28, 2019
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