Delhi High Court: In a case wherein the wife-appellant challenged the common order and judgment dated 18-09-2018 passed by the Family Court, Dwarka, New Delhi (‘Family Court’), whereby the petition filed by the husband-respondent under Sections 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (‘HMA’) seeking divorce on the ground of cruelty and desertion had been allowed, the Division Bench of Sanjeev Sachdeva* and Vikas Mahajan, JJ., opined that the power to grant divorce on the ground of irretrievable breakdown of marriage was exercised by the Supreme Court under Article 142 of the Constitution to do complete justice to both the parties and such a power was not vested in the High Courts leave alone the Family Courts. The Court held that in the present case, the Family Court had erred in travelling beyond the scope of its powers to grant divorce. Thus, the impugned judgment dated 18-09-2018 granting divorce on the ground of cruelty and breakdown of marriage was set aside.
Background
The parties got married on 17-02-2002 according to Hindu rites and customs and were blessed with a daughter on 07-01-2007. The husband submitted that they had been living separately since January 2007 and as per the wife since May 2007. The husband had filed the petition seeking divorce on 26-05-2011 alleging that the wife used to exert pressure upon him to separate himself from his family members and live at her parental home. The wife was also alleged to have neglected the presence of other members of his family; would not even wish any guests and elders in the family and that she used to misbehave with him and her behaviour towards his family members was disrespectful.
The husband submitted that from the very first day of marriage, his wife created scenes at night hours and most of the times did not allow him to enjoy his conjugal rights and she refused him access to her and inflicted cruelty upon him. The husband also submitted that twenty days after the birth of their daughter, his wife left with her father for her parental house and had not returned to her matrimonial home despite repeated requests and visits by him.
The Family Court, after considering the evidence led by the parties held that it clearly reflected that the wife was interested to stay with her husband at the matrimonial house, but it was the husband who was not interested to keep his wife along with him. The Family Court thus held that the husband had failed to establish the ground of desertion. In respect of the ground of cruelty, the Family Court had held that there were no normal and healthy sexual relationships between the parties and the same had resulted in striking at the very foundation of their marriage. The Family Court after holding that there was denial of conjugal relations, noticed that parties had been living separately for more than eleven years and held that the marriage had broken down beyond repair and thus held that the husband had successfully established cruelty and thus granted a decree of divorce against the wife.
Analysis, Law, and Decision
The Court noted that the divorce was granted mainly because the wife denied conjugal relationships and that since the husband and wife had been living separately for eleven years, marriage had broken down irreparably. The Court further noted that the Family Court held that the cruelty as alleged had not been proved by the husband, but divorce was granted due to denial of conjugal relationship.
The Court opined that the said ground was not available to the husband and the Family Court had erred in holding that there was denial of conjugal relationship by the wife. The allegations of the husband’s denial of conjugal relationship were vague and without any specifics. The Court opined that the husband had alleged that he was allowed by his wife only 30-35 times (approximately) to enjoy conjugal relations since their marriage, thus, this clearly showed that there was never any complete denial by the wife. Moreover, the fact that a girl child had been born to the parties clearly showed that the allegation that husband had been denied conjugal relations was incorrect.
The Court opined that breakdown of marriage was not a ground for grant of divorce under the HMA and the wife was clearly not at fault, and it was the husband who was at fault. The Court relied on Chetan Dass v. Kamla Devi, (2001) 4 SCC 250 and held that the husband should not be allowed to take advantage of his own wrong as he was the one who was found to have deserted his wife and then taken the plea of desertion on her part. Thus, he could not be permitted to walk out of the matrimonial alliance on the ground that the marriage had broken down.
The Court also relied on Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544 (‘Shilpa Shailesh Case’) and opined that the power to grant divorce on the ground of irretrievable breakdown of marriage was exercised by the Supreme Court under Article 142 of the Constitution to do complete justice to both the parties and such a power was not vested in the High Courts leave alone the Family Courts. The Court opined that “even the Supreme Court while considering exercise of discretionary powers under Article 142 of the Constitution considered several factors and longevity of period was only one of them”. The Court noted that the Supreme Court in Shilpa Shailesh Case had held that the “grant of divorce on the ground of irretrievable breakdown of marriage by this Court was not a matter of right, but a discretion which was to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ was done to both parties. It was obvious that the Court should be fully convinced and satisfied that the marriage was totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage was the right solution and the only way forward and that the marriage had irretrievably broken down was to be factually determined and firmly established”.
The Court held that in the present case, the Family Court had erred in travelling beyond the scope of its powers to grant divorce. Thus, the impugned judgment dated 18-09-2018 granting divorce on the ground of cruelty and breakdown of marriage was set aside.
[X v. Y, 2023 SCC OnLine Del 5829, decided on 19-09-2023]
*Judgment authored by: Justice Sanjeev Sachdeva
Advocates who appeared in this case :
For the Appellant: Lohit Ganguly, Ajay Kumar, Mohit Khatri, Advocates
For the Respondent: D.K. Pandey, Vikram Panwar, Advocates
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