Vidhi Sharma vs Vinod Sharma And Ors

This appeal has been preferred by the appellant wife against the order of the learned Family Court No.2, Jaipur passed on 01.08.2016 whereby the

learned Family Court had allowed the petition filed by the respondent husband under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act').

Brief facts giving rise to this appeal are that the marriage between the parties was solemnized on 24.11.1993. After marriage, parties started to live

abroad in California (USA). Out of their wedlock, a daughter was born in the month of October, 1995 and then a son was born in the month of June,

2000. The parties separated in the year 2008. Since, thereafter, appellant wife is living separately with her two children and maintaining them.

The respondent husband in his petition stated that the appellant wife used to quarrel with him and her behaviour was rude. The respondent husband

had purchased a house at California but appellant wife used to quarrel with him and she had made false complaints against him. He was mentally

depressed and he had to sell his property in 2007 and return to India. Appellant wife had taken the custody of children from the Family Court,

Bangalore and where she had stated that the respondent husband was mentally retarded. She had left respondent's house without any cause since

16.09.2008. Therefore, the divorce decree be granted.

Appellant wife in her written statement denied the allegations levelled by the respondent and stated that the respondent husband had treated her with

cruelty. She stated that he had not given a single penny to maintain and for education of the children etc. So, the divorce petition be rejected.

On the basis of the pleadings, the following issues were framed by the learned Family Court:-

(1) Whether the non petitioner wife after marital rituals behaved with the petitioner with cruelty.

(2) Whether the non petitioner has abandoned the appellant continuously since the date 16.09.2008.

(3) Whether the petitioner is entitled to get the decree of divorce.

(4) Relief.

The respondent examined himself as AW-1, appellant examined herself as NAW-3 and the witnesses NAW-1 Premraj Sharma and NAW-2 Nidhi

Sharma.

Learned Family Court heard the arguments and allowed the petition filed by the respondent husband.

Learned counsel for the appellant submitted that the impugned order dated 01.08.2016 is illegal and arbitrary and against the material available on

record. The respondent husband himself had abandoned his wife and children. Therefore, he could not take benefit of his own wrong.

Learned counsel for the appellant submitted that the allegations of cruelty levelled against the appellant wife were incorrect and wrong. No substantial

proof or evidence to prove allegations had been adduced by the appellant. The respondent husband in his statement wrongly stated that the appellant

wife had not taken care of him at the time of his mental depression. Appellant wife in her evidence clearly stated that she had taken respondent

husband for treatment several times to the doctors. Appellant's witnesses Premraj Sharma and Nidhi Sharma had also supported these facts.

Learned counsel for the appellant further submitted that the learned Family Court wrongly considered the issue of desertion. From the evidence it was

revealed that the respondent husband did not want to live with his wife and children. He himself was at fault for living separately. So, he could not get

advantage of his own wrong.

Learned counsel for the appellant further submitted that at this late stage dissolution of marriage and in view of age of the parties it would neither be in

interest of the appellant wife rather it would adversely affect the career and future of both the children. The order of the learned Family Court be set

aside.

Learned counsel for the respondent has opposed the arguments advanced by the learned counsel for the appellant and submitted that the learned

Family Court rightly allowed the application under Section 13 of the Act.

We have given our thoughtful consideration to the arguments advanced by both the parties, perused the impugned order and the material available on

record.

Learned Family Court in its order clearly stated that behaviour of the appellant wife towards the respondent husband was cruel. So, he was mentally

depressed and he had to take treatment for his mental disorder in America and at Bangalore. It also transpired from the evidence of appellant that the

appellant had not taken care of the respondent when he was mentally depressed. It was her moral duty to take care of him. Appellant had taken

custody of children from Family Court, Bangalore and she had adequate income to maintain herself.

Learned Family Court in its order clearly observed that appellant wanted to live her life on her own desires. In her evidence, appellant stated that she

had left respondent's house on 15.09.2008. After that she had not made any effort to live with him. During the course of arguments, it has transpired

that appellant is residing in California with her children and respondent is residing in India. Therefore, learned Family Court had not committed any

error in deciding both the issues against the appellant wife.

The order of the learned Family Court does not suffer from any illegality and infirmity. So, the appeal being devoid of merit, is liable to be rejected.

In the result, the appeal is dismissed.