Vipin Kumar Sharma vs Mithlesh Kumari

J.R. Midha, J.—The appellant has challenged the judgment and decree dated 30th July, 2008 passed by learned Additional District Judge whereby the petition for divorce u/s 13(1)(ia) and (ib) of the Hindu Marriage Act, 1995 has been dismissed.

The appellant was married to the respondent on 8th February, 1985 according to Hindu Marriage rites and ceremonies. Three children were born out of this wedlock who are now aged about 18,19 and 20 years.

The respondent initially contested the petition before the learned Trial Court by filing the written statement on 9th May, 2007. However, she subsequently stopped appearing and was proceeded ex-parte on 4th January, 2008. She again appeared on 30th May, 2008 and joined the proceedings and also filed an application for setting aside the ex-parte order but the same was withdrawn on 29th July, 2008.

The learned Trial Court has dismissed the petition on the ground that the appellant has not been able to prove the acts of cruelty against the respondent. The learned Trial Court has held that the conduct charged as cruelty against the respondent is in the nature of normal tits and bits of the matrimonial life and do not constitute cruelty to get a decree of divorce. The learned Trial Court further held that the appellant had filed petition for restoration of conjugal rights which was dismissed on the ground that the appellant had not approached the Court with clean hands. In the said judgment, it was also held that the appellant was responsible for desertion and had no bonafide will to join the respondent. The learned Trial Court also held the petition to be barred by Section 23 of the Hindu Marriage Act as the appellant was apparently trying to take advantage of his own wrongs.

I have gone through the impugned judgment and the Trial Court record. I agree with the findings of the learned Trial Court. The appellant has not been able to prove the cruelty.

The learned Counsel for the appellant submits that the appellant has lodged an FIR against the respondent. The lodging of the FIR per se cannot be said to amount to cruelty till the adjudication by the Competent Court with respect to veracity of the averments made therein. It is not disputed that the matter is still sub-judice.

There is no merit or substance in the appeal which is hereby dismissed.