High Court of Delhi

Akshay Sharma v. Kamlesh Sharma

MANU/DE/2092/2016

17.08.2016

Family

Party seeking divorce under matrimonial offence theory must be innocent

Admitted facts in instant case were that, Appellant/husband got married to respondent/wife on May 05, 1992 according to Hindu rites. Parties stayed together for a short duration. During short stay, Respondent conceived and gave birth to a son on February 19, 1993. Parties continued living separately even after birth of son and thereafter on August 26, 1994, Respondent/wife lodged FIR No.500/1994 under Sections 498-A/406/34 Indian Penal Code against Appellant. However, matter was compromised and parties started living together in terms of settlement entered into on October 13, 2003 and resumed cohabitation. On April 06, 2004, Respondent/wife gave birth to a female child. Respondent/wife again left her matrimonial home in year 2005 and had not returned thereafter. In year 2012, Appellant/husband filed a Petition seeking restitution of conjugal rights which had been dismissed by learned Judge, Family Court. Thereafter, Petition seeking dissolution of marriage on account of desertion by Respondent filed which had been dismissed by learned Judge, Family Court.

Intention of Appellant/husband not to give a chance to Respondent/wife to resume cohabitation is well established through evidence and proceedings on record. Petition under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights was just to create a ground for seeking divorce. Stand taken by Respondent/wife expressing her intention to resume matrimonial obligations had effect of conceding to prayer made in Petition under Section 9 of Act, 1955 by wife which was not acceptable to Appellant/husband.

As Appellant/husband was not willing to take Respondent/wife to matrimonial home, he cannot blame Respondent/wife for deserting him without any reasonable cause or excuse. Party seeking divorce under matrimonial offence theory must be innocent. Appellant/husband who was at fault, when he declined the offer of his wife to join him unconditionally though, he himself filed a Petition for restitution of conjugal rights, proved that, Respondent/wife was not to be blamed. Being a wrongdoer, he could not take advantage of his own wrong.

Respondent/wife had no intention to destroy matrimonial life and she giving birth to two children though the second time she reunited after 12 years of separation showed that she never abandoned the relationship. This was sufficient to dismiss Petition for dissolution of marriage on account of desertion by Respondent.

Tags : Marriage Dissolution Grant thereto

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