RITA VASHISHTHA Vs. ANIL KUMAR VASHISHTHA

JUDGEMENT

(1.) The present appeal has been filed under Section 19 of the Family Courts Act, 1984 against the judgment dated 16.09.2017 passed by the Family Court by which the petition filed by the respondent/husband seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'HMA') was allowed and a decree of divorce has been granted.

(2.) The necessary facts to be noticed for the disposal of the present appeal are that the marriage between the parties was solemnized on 03.11.1995, at Hathras-Uttar Pradesh, as per Hindu rites and ceremonies. Two children were born from the said wedlock, who are both major and are staying with their mother/appellant herein after separation. As per the appellant/wife, she is staying separately since 15.06.2001. On 09.07.2001, a petition seeking divorce under Section 13(1)(ia) of HMA was filed by the respondent/husband before District Court, Kanpur which was subsequently transferred to Delhi vide order dated 18.11.2002 passed by the Supreme Court of India.

(3.) Mr.Vishesh Wadhwa, learned counsel for the appellant/wife submits that the respondent/husband had infact failed to prove that the grounds of cruelty alleged in the petition. There are no pleadings or evidence which would establish the ground of cruelty. In fact, the main thrust of argument of the learned counsel for the appellant/wife is that the Family Court has simply relied upon the allegations made against the respondent/husband either in the written statement filed by her or during the course of her evidence. He submits that the only course available to the respondent/husband was to amend the plaint and lead additional evidence and the Family Court has thus erred in granting a decree of divorce based on the pleadings and evidence of the appellant/wife. He submits that his case would be squarely covered by a recent decision of the Supreme Court in the case of Suman Singh v. Sanjay Singh, 2017 4 SCC 85. Reliance is placed on paras 18 to 21 which we reproduce below: