SHIPALI SHARMA Vs. GAURAV SHARMA

JUDGEMENT

(1.) THE present appeal has been preferred by the appellant under Section 19 of the Family Courts Act, 1984, read with Section 28 of the Hindu Marriage Act, 1955 against judgment/decree dated 11.09.2013 passed by the learned Family Court, Rohini, New Delhi in HMA No. 164/2010, whereby the marriage between the appellant and respondent has been dissolved on the ground of cruelty under Section 13(1) (i) (ia) of the Hindu Marriage Act, 1955.

(2.) ASSAILING the legality and correctness of the impugned judgment, Mr. Vikas Singh, learned Senior Advocate, counsel for the appellant vehemently contended that all the four incidents that have been cited in the impugned judgment establishing cruelty on the part of the appellant pertains to the period prior to August 2006 and as per the own testimony of the respondent, he admitted that he was having normal physical relationship with the appellant till August 2006 and this admission on the part of the respondent demolishes his own case as all the alleged acts of cruelty committed by the appellant prior to August 2006 stood condoned because of the respondent having normal physical relationship with the appellant till that period. In support of his submission learned counsel for the appellant placed reliance on the judgment of the Apex Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastane, reported as : (1975) 2 SCC 326. Counsel also argued that under Section 23 of the Hindu Marriage Act, a duty is cast on the Court to satisfy itself, irrespective of the fact whether such a petition is defended or not, that the petitioner seeking divorce on the ground of cruelty has not in any manner condoned the acts of cruelty. Submission of learned counsel for the appellant is that in the impugned judgment the finding of the learned Family Court that 'moreover no suggestion has been given with regard to the fact if all the cruelties have been condoned by the petitioner' is contrary to the mandate of Section 23 of the Hindu Marriage Act, as even in the absence of any suggestion given by the appellant suggesting the respondent about condoning of the previous acts of cruelty, the Court cannot abdicate its responsibility to satisfy itself about such conduct of the petitioner of condoning the previous acts of cruelty. Counsel submits that the learned Family Court has not followed the mandate of Section 23 of the Hindu Marriage Act and thus has committed grave illegality in passing the impugned judgment on the ground of cruelty.

(3.) ANOTHER instance of non application of mind cited by the learned counsel for the appellant pertains to the seventh incident. This incident again pertains to first week of August 2006 when the appellant became furious and started beating the respondent when she was informed that there was no occasion to inform the relatives about her miscarriage. The other incidents on which the learned Family Court placed reliance, while passing decree of divorce on the ground of cruelty were also not proved by the respondent in evidence.