DEEPTI (Appellant) Vs. ANIL KUMAR (Respondent)
MAT. APP (F.C.) 290/2018
(2JB, SANJEEV SACHDEVA and VIKAS MAHAJAN JJ., delivered by SANJEEV SACHDEVA, J.)
Facts: Appellant/wife impugns common order and judgement dated MAT. APP (F.C.) 290-291/2018 passed by the Family Court, Dwarka, New Delhi whereby the Petition filed by the Respondent/husband under section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955 seeking divorce on the ground of cruelty and desertion has been allowed and the Counter Claim filed by the Appellant seeking restitution of conjugal rights has been dismissed.
Issue: Whether family court can grant divorce on the ground of irretrievable breakdown of marriage?
Arguments on behalf of counsel for appellant: Mr. Lohit Ganguly
Learned counsel for the Appellant submits in view of the judgment of the Supreme Court in Dharmendra Kumar versus Usha Kumar (1977) 4 SCC 12, wherein the Supreme Court has held that the expression “the petitioner is not, in any way, taking advantage of his or her own wrong” occurring in Section 23 (1)(a) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred by Section 13(1A) of the Act, Appellant does not wish to press the appeal (MAT APP. (F.C.) No. 291/2018) challenging the decree dismissing her petition for restitution of conjugal rights.
Arguments on behalf of counsel for respondent: Mr. D.K. Pandey
Respondent had filed the Petition seeking divorce on 26.05.2011 alleging that the Appellant used to exert pressure upon him to separate himself from his family members and live at the parental home of the Appellant. She is also alleged to have neglected the presence of other members in his family and would not even wish any guests and elders in the family. It is alleged that she used to misbehave with him and her behaviour towards his family members was disrespectful. He alleged that she used to stay at her parents’ house on one pretext or the other. She would not do the household chores.
Held: The court dismissed the appeal, holding that, “In the present case, the Family Court has erred in travelling beyond the scope of its powers to grant divorce. In view of the above, the impugned judgment dated 18.09.2018 granting divorce on the ground of cruelty and breakdown of marriage is not sustainable and is accordingly set aside. The Divorce Petition filed by the Respondent is dismissed.”
The court observed that, “In the instant case, the Family Court has merely considered the fact that the parties have lived separately for 11 years and granted divorce on the ground of breakdown of marriage. Such an exercise of powers is not conferred on the Family Court. Family Courts have to restrict their considerations to the parameters of the provision of grant of divorce strictly in accordance with the Act. Irretrievable breakdown of marriage is not a ground in the Act.”
