Daily Archives: October 10, 2016

NO DV case IF accused are NOT in domestic relationship, NOT living in same house !! Delhi HC

woman files DV case on ppl NOT living in the same house and delhi HC clearly thows out her appeal ..also quotes extensively from “… Harbans Lal Malik Vs. Payal Malik…” including key paras about roping in ppl NOT living in same house !!


Date of Decision : September 09, 2016

CRL.M.C. 46/2013

BABITA @ KAVITA                                    ….. Petitioner
Represented by:          Mr.K.P.Jain, Advocate for
Mr.O.P.Saxena and Mr.S.Kumar,


STATE & ORS.                                       ….. Respondents
Represented by:          Mr.Amit Ahlawat, APP with SI Kapil Kumar, PS M.S.Park
Mr.S.K.S.Bhaduria, Advocate for R-2 and R-3

CRL.M.C. 2637/2014

BABITA @ KAVITA                                    ….. Petitioner
Represented by:          Mr.K.P.Jain, Advocate for
Mr.O.P.Saxena and Mr.S.Kumar, Advocates


STATE & ORS.                                       ….. Respondents
Represented by:          Mr.Amit Ahlawat, APP with SI Kapil Kumar, PS M.S.Park
Mr.S.K.S.Bhaduria, Advocate for R-4 and R-5




  1. In Crl.M.C.No.46/2013 Babita is aggrieved by the order absolving Ved Prakash and Hira Devi in proceedings under Protection of Women from Domestic Violence Act, 2005. In Crl.M.C.No.2637/2014 her grievance is to anticipatory bail granted to respondents No.2 to 5 who are : Ram Prasad, his wife Laxmi Devi, Ved Prakash and his wife Hira Devi.
  2. The marriage between Babita @ Kavita and Manoj Kumar was solemnized on May 01, 2006 as per Hindu Rites and Customs in New Delhi and they proceeded to reside at the matrimonial home being House No.278, IInd Floor, Masjid Moth, New Delhi-110049.
  3. It is the case of Babita that at the time she married Manoj it was represented that Ram Prasad and Laxmi Devi are his parents and Ved Prakash and Smt.Hira Devi were introduced as the brother and sister-in-law respectively of Smt.Laxmi Devi. At the time of marriage, the complainant’s father gave various articles and a sum of `2 lakhs as part of stridhan to Ram Prasad and Laxmi Devi. That she was repeatedly beaten and abused by the respondents collectively for having failed to fulfill their demand for dowry in sum of `15 lakhs. Ved Prakash and Hira Devi would regularly visit the matrimonial home and humiliate and give beatings to the complainant for having failed to give birth to a son and for bringing inadequate dowry. She was subjected to beatings and mental torture at the hands of the respondents on May 09, 2007, July 21, 2008, September 18, 2011 and October 16, 2011. On August 20, 2008, she discovered that the respondents had concealed material information about their identities. She discovered that her husband was actually the adopted son of Sh.Ram Prasad, and Smt.Laxmi Devi and that Sh.Ved Prakash and Smt.Hira Devi, who were introduced as relatives of Smt. Laxmi Devi were the biological parents of her husband. On September 18, 2011, the respondents threatened to kill her and she was forced to leave her matrimonial home.
  4. Babita had filed a complaint No.80/12 dated December 24, 2011 before the Metropolitan Magistrate seeking reliefs of maintenance and damages for mental distress under Section 20(d) and Section 22 of the Protection of Women from Domestic Violence Act, 2005. FIR No.100/2012 dated June 07, 2012 was also registered for offence punishable under Sections 498-A/406/34 IPC and Section 4 of the Dowry Prohibition Act at P.S. Mansarovar Park, New Delhi on the complaint lodged by Babita.
  5. Pertaining to the complaint lodged under the Protection of Women from Domestic Violence Act, 2005 and perusal of the allegations therein, the learned Metropolitan Magistrate deleted Sh.Ved Prakash and Smt.Hira Devi from the array of respondents vide order dated February 29, 2012 which order has been confirmed by the learned ASJ, Kakardoma Court vide order dated November 29, 2012 holding that there is no domestic relationship between the complainant and Sh.Ved Prakash and Smt.Hira Devi who were not even residing with the complainant in the matrimonial home. The allegations against Ved Prakash and Hira Devi have been found to be vague.
  6. In the decision reported as 2010 (3) CC Cases (HC) 543 Harbans Lal Malik Vs. Payal Malik in paras 9 to 20 it was observed as under:-
    • “9. The first issue arising in this case is whether an application under Section 12 of Domestic Violence Act made by the respondent could have been entertained against all the respondents (petitioners herein) as arrayed in her application and whether the Court without discussing the domestic and legal relationship of different respondents with the petitioner, could have passed an order against the petitioners making them jointly and severally liable to pay maintenance of `50,000/-.
    • 10. Under Section 12, an „aggrieved person? can file an application to Magistrate against the respondents. The respondent has been defined under Section 2 (q). The definition reads as under: “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
    • 11. It is apparent that in order to make a person as respondent in a petition under Section 12, there must exist a domestic relationship between the respondent and the aggrieved person. If there is no domestic relationship between the aggrieved person and the respondent, the Court of MM cannot pass an order against such a person under the Act. Domestic relationship is defined under Section 2 (f) of the Act and is as under:  “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family; 
    • 12. It is apparent that domestic relationship arises between the two persons, who have lived together in a shared household and when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The definition speaks of living together at any point of time however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person cannot be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. The first respondent made by the wife in her complaint before the learned MM in this case was husband with whom the wife had lived under the same roof in a shared household till 22 nd August, 2008 in USA. She had not lived for last 7 ½ years with respondent no.1 in India. Respondent No.4 is Varun Malik who is brother of the husband. Under no circumstances it can be said that brother of husband, who was a major and independent, living separately from this husband and wife, had any kind of domestic relationship or moral or legal responsibility/obligations towards his brother?s wife. He had not lived in domestic relationship with Payal Malik at any point of time. Merely because a person is brother of the husband he cannot be arrayed as a respondent, nor does an MM gets authority over each and every relative of the husband, without going into the fact whether a domestic relationship or shared household was there between the aggrieved person and the respondent.
    • 13. The other respondent made in this case is Harbans Lal, father of Nagesh Malik. Nagesh Malik was living in USA he came to India to solemnize his marriage with an appropriate person. After marriage was solemnized he left India and went to USA. He lived all along with his wife in USA, birth of the child had taken place in USA. In all such cases where boy lives abroad and is settled abroad but comes to India for marriage, it is known to the girl as well as to the parents of the girl that they are choosing a groom who is not living with his parents but settled abroad. His links with the parents are only as with any other relative. He is not dependent on parents may be parents, if poor, take financial help from him.
    • 14. The girl and the parents of the girl knew it very well that they had selected a person for marriage with whom the girl was going to live abroad and the matrimonial home and the shared household was going to be outside India. This act of marrying a person settled abroad is a voluntary act of the girl. If she had not intended to enjoy the fat salary which boys working abroad get and the material facilities available abroad, she could have refused to marry him and settled for a boy having moderate salary within India. After having chosen a person living abroad, putting the responsibility, after failure of marriage, on the shoulders on his parents and making them criminals in the eyes of law because matrimonial ties between the two could not last for long, does not sound either legally correct or morally correct. How can the parents of a boy who is working abroad, living abroad, an adult, free to take his own decisions, be arrayed as criminals or respondents if the marriage between him and his wife failed due to any reason whatsoever after few years of marriage. If the sin committed by such parents of boy is that they facilitated the marriage, then this sin is equally committed by parents of the girl. If such marriage fails then parents of both bride and groom would have to share equal responsibility. The responsibility of parents of the groom cannot be more. Shelter of Indian culture and joint family cannot be taken to book only relatives of boy. A woman?s shared household in India in such cases is also her parents? house where she lived before marriage and not her in-laws? house where she did not live after marriage.
    • 15. When the shared household of husband and wife had not been in India for the last 08 years at any point of time, it is strange that the learned MM did not even think it proper to discuss as to how the father or the brother of the boy could be made respondents in proceedings of domestic violence, after husband and wife had not been able to pull on together. In the present case, Mr. Harbans Lal Malik petitioner could not be said to have shared household with the respondent since the respondent had not lived in his house as a family member, in a joint family of which Harbans Lal Malik was the head.
    • 16. It is important to consider as to what “family” is and what “joint family” is. As per Black?s Law Dictionary (VI Edition) “family” means a collective body of persons who live in one house under one head or management. Dictionary states that the meaning of word “family” necessarily depends on field of law in which word is used, but this is the most common meaning. “Family” also means a group of blood relatives and all the relations who descend from a common ancestor or who spring from a common root. However, for the purpose of domestic violence act where the object is to protect a woman from domestic violence, “family” has to be defined as a collective body of persons who live in one house under one head or management. In Chamber?s Dictionary (1994-95) again the “family” is defined as all those who live in one house i.e. parents, children servants; parents and their children. In Shorter Oxford English Dictionary (1993 ed.) “family” is defined as a group of persons living in one household including parents and their children, boarders, servants and such a group is a organizational unit of society.
    • 17. A Hindu Joint Family or Hindu Undivided Family (HUF) or a Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof. All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters or widowed relatives, all bound by the common sapinda relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. The family is headed by a patriarch, usually the oldest male, who makes decisions on economic and social matters on behalf of the entire family. The patriarch?s wife generally exerts control over the kitchen, child rearing and minor religious practices. All money goes to the common pool and all property is held jointly.
    • The essential features of a joint family are:
      • ? Head of the family takes all decisions ? All members live under one roof ? Share the same kitchen ? Three generations living together (though often two or more brothers live ? together or father and son live together or all the descendants of male live together) Income and expenditure in a common pool – property held together.
      • ? A common place of worship ? All decisions are made by the male head of the family – patrilineal, ? patriarchal.
    • 18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad. I, therefore consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic Violence Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.
    • 19. I, also consider that the definition of “wife” as available under Section 125 Cr.P.C could not be imported into Domestic Violence Act. The Legislature was well aware of Section 125 Cr.P.C. and if Legislature intended, it would have defined “wife” as in Section 125 Cr.P.C in Domestic Violence Act as well. The purpose and object of Domestic Violence and provision under Section 125 Cr.P.C. is different. While Domestic Violence Act has been enacted by the Parliament to prevent acts of domestic violence on women living in a shared household. Section 125 of Cr.P.C. is to prevent vagrancy where wife is left high and dry without maintenance. Law gives a right to claim maintenance under Civil Law as well as Section 125 Cr.P.C. even to a divorced wife, but an act of domestic violence cannot be committed on a divorced wife, who is not living with her husband or family and is free to live wherever she wants. She has a right to claim maintenance and enforce other rights as per law. She has a right to claim custody of children as per law but denial of these rights do not amount to domestic violence. Domestic Violence is not perceived in this manner. The definition of “Domestic Violence” as given in Section 3 of The Protection of Women from Domestic Violence Act, 2005 and is under:
      • 3. Definition of domestic violence .- 
      • For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it – 
      • (a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
      • (b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or 
      • (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
      • (d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person. 
      • Explanation I.-For the purposes of this section,-
      • (i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force; 
      • (ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;
      • (iii) “verbal and emotional abuse” includes- 
      • (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and 
      • (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
      • (iv) “economic abuse” includes-
      • (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
      • (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
      • (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
    • 20. This definition pre supposes that the woman is living with the person who committed violence and domestic relationship is not dead buried or severed. This does not speak of past violence which a woman suffered before grant of divorce.”
  7. Judicial discipline warrants this Court to follow the law declared by a coordinate bench, and doing so I dismiss Crl.M.C.No.46/2013.
  8. I see no reason to cancel the anticipatory bail granted in FIR No.100/2012 to respondents No.2 to 5. The principles of cancelling a bail granted have been succinctly noted in the order impugned which is dated March 03, 2014 by the learned Additional Sessions Judge. Thus, Crl.M.C.No.2637/2014 is also dismissed.

    Crl.M.A.No.219/2013 in Crl.M.C.No.46/2013 Dismissed as infructuous.


    SEPTEMBER 09, 2016/mamta

Poor labor who can’t provide separate home looses divorce 12 years after separation !! Marriage is a gamble !!

A poor manual labor’s wife seeks separate acco. Case goes to CAW cell, here there. Husband is forced to arrange separate acco for wife. He does initially but later on abandons acco (probably couldn’t afford it). (however in his depositions he denied having provided separate acco) Wife and husband separate. Husband tries to get divorce. He looses divorce in lower court and also in HC !! Even though parties are separated for 12 years, Delhi HC refuses divorce !! 😦

#Divorce #Cruelty #Desertion #Irretrievable_Breakdown #Men_and_Marriage #Is_Marriage_a_gamble



Reserved on: 26.07.2016

Decided on: 21.09.2016

MAT.APP. 45/2011

MINI APPA KANDA SWAMI @ MANI              ….. Appellant
Through: Ms. Shailja Balasaria, Advocate.


M INDRA                                               …. Respondent
Through: None.



  1. 1. This appeal has been preferred by the appellant husband against the order of the Family Court, Rohini, Delhi, dated 12.08.2010 whereby his petition for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act (hereafter “the Act”) was dismissed.
  2. Briefly, the facts are that the parties got married according to Hindu rites and customs at JJ Colony, Delhi on 06.09.2003 and through the wedlock one male child was born on 01.07.2004.
  3. The petition for divorce was filed by the appellant on the ground of cruelty, alleging that the respondent wife was pressurizing him to setup a separate home as she did not want to live in a joint family. The appellant worked as a labourer and it is his contention that owing to limited financial means it was not possible for him to set up a separate independent household. It is further contended that despite several attempts to explain the difficulty of setting up a separate household, the respondent refused to cooperate and kept pressurizing the appellant. It is argued that the respondent became overbearing and abusive and also started misbehaving, not only with the appellant but also with his family members. The respondent would get aggressive and on several occasions had even beaten him. She also refused to do the household chores and threatened to implicate him and his family members in false criminal cases. Thereafter, on 21.11.2003, her parents visited her and instead of advising her to mend her ways, supported her. The respondent continued her atrocities against the appellant and his family and on 21.01.2004, left the matrimonial home without giving any reasons. It is argued by the appellant that he and his family members made several efforts for reconciliation and even went to the respondent’s parental home on 10.02.2004 and 04.03.2004 to bring her back so that she could rejoin the company of the appellant. However, all such attempts failed. In fact, it is alleged, that instead of sorting the differences, the respondent and her family threatened to implicate the appellant as well as his family members in dowry demand cases. The appellant received a notice from CAW Cell (Crime Against Women Cell) on 30.03.2005. A false complaint with Mahila Ayog (Delhi Commission of Women) was also filed by the wife. The appellant submits that he returned all the dowry articles to the respondent on 25.04.2005. It is submitted that he did not condone the wife’s cruelty in any manner and that their marriage reached a point of no return with there being no likelihood of a patch up or sorting of differences. Under such circumstances there could be no re-union of the parties.
  4. The respondent, who appeared in person in the proceedings, had filed her written statement which controverted all the appellant’s contentions and had urged that it was he who had treated her with cruelty. She contends that the appellant had raised a demand of ` 1 lakh as well as a motor cycle and when she could not make good of these demands, she was turned out of the matrimonial home; she made efforts for reconciliation, but to no avail. It is also contended that she was sent back to her parental home when she was in family-way and all the delivery expenses were borne by her parents.
  5. In the replication, the appellant had alleged that it was he who had borne the delivery as well as post-delivery expenses and denied any allegation that he had demanded any money or a motor cycle or even that he had treated her with cruelty.
  6.  The Family Court heard the arguments and framed three issues:- “a. Whether after the solemnization of marriage, the respondent has treated ‘the petitioner with cruelty’? OPP b. Whether the respondent has deserted the petitioner , for a continuous period of not less than 2 years immediately before presentation of this petition? OPP c. Whether the petitioner is entitled for a decree of divorce on the ground as prayed for? OPP
  7. Parties led their evidence. While the appellant had examined himself and his mother and one neighbour, the respondent had examined herself and her father. After considering all the evidence on record, the Family Court found that the husband had failed to discharge the burden placed upon him and had failed to prove that the respondent had committed cruelty of such nature which warranted a decree of divorce. It was also observed that the husband had failed to prove that his wife had deserted him for a continuous period of two years and dismissed the petition.
  8. The impugned order is challenged by the appellant before this Court on the grounds that the learned Judge has failed to take note of the unrebutted statements of his witnesses and that there was no reason to disbelieve their testimonies. Learned counsel for the respondent, Ms. Shailja Balasaria submits that on a reading of the impugned order, there appears to be an inconsistency in the observations made by the learned trial Judge in para 22. Counsel urges that the judgment is based solely on presumptions and suffers from infirmity and illegality and is liable to be set aside.
  9. It is further contended that the appellant is possessed of limited financial means and in the circumstances could not have afforded a separate independent household. The respondents demanded a separate residence and committed acts of misbehavior which resulted in cruelty; by passing the impugned order, the Family Court has erred in holding that the demand of the respondent for a separate home was justified. It is further argued that the Family Court wrongly relied upon a settlement reached between the parties before the CAW Cell although no such settlement was proved on record by the respondent.
  10. The question for consideration is whether the conduct of the respondent/wife in the circumstance of the case, amounted to cruelty, to entitle the husband to divorce. Cruelty could be physical or mental or both. While it is easy to discern physical cruelty, mental cruelty has to be assessed from the overall behavior of spouses as well as other incidental factors. There is no doubt that in a matrimonial setup, a couple, which decides to live together, invariably has different attitudes and opinions, likes and dislikes, and more often than not spouses behave differently when faced with the same situations. While disputes and arguments are normal in a marriage, in order to constitute cruelty, the conduct of the spouse should be something more serious than the ordinary “wear and tear” of a marital life.
  11. While considering whether a particular conduct constitutes cruelty or not, the social status of parties, cultural background, physical and mental conditions, customs and traditions etc. have to be considered. Mental cruelty can be assessed from the continuous unprovoked conduct of a spouse which causes embarrassment, humiliation, and anguish so as to render the other spouse’s life miserable and unendurable. This conduct should be of such gravity that the wronged party cannot be reasonably asked to put up with such conduct and continue to live with the other party.
  12. The Supreme Court in the case of A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, has observed as under:- “It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of such type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of …….”
  13. It is in the backdrop, of the behavior of parties, that the court has to discern if the conduct complained is cruelty. There is no dispute as to the fact that the appellant was working as a labourer. He was living in a house built on a plot measuring 25 sq. yards, consisting of two rooms, along with his parents, three brothers and three sisters. While the appellant in his evidence deposed he had a room on the ground floor and one room on the first floor, his mother in her deposition claimed that there were two rooms on the ground floor and one room on the first floor. Even if the latter account were taken to be true, it leads to a scenario where, three rooms accommodate eight adults. With the respondent joining her matrimonial home and after the birth of their child, the number of members living in that house further increased. It was in the background of these facts that the learned trial Judge held: “The petitioner has claimed that the respondent wanted to stay in a separate accommodation. She definitely requires/required one bedroom for herself and the petitioner. Such a demand from the newlywed cannot be considered as unwarranted or undesirable. If the respondent at all wanted to stay in a separate accommodation that could be only because she did not or could not have the required privacy in the matrimonial home in such a large family. I am, therefore, of the considered view that her expectation/demand was not unreasonable.”
  14. Privacy is a fundamental human right. Oxford dictionary defines privacy as “a state in which one is not observed or disturbed by the other people.” So when a woman enters into matrimony, it is the duty of the family members of her matrimonial home to provide her with some privacy. There is no evidential backing by the appellant or his family members showing that they had provided requisite privacy to the respondent. The Family Court was therefore correct in holding that such demand was not unreasonable and as such did not constitute cruelty. Besides this allegation, the appellant has not brought on record any proof to substantiate the allegation that the behavior of the respondent caused mental cruelty. The allegation that she was abusing the appellant and his family members are vague and there are no specific instances cited.
  15. The Family Court has further noticed on the basis of evidences on record that the petitioner had taken a rented accommodation and stayed there with the respondent, but later on abandoned her. The Family Court relying on the evidences on record held:- “The record, further, reveals that the respondent had lodged a complaint with CAW Cell and there, the parties arrived at a compromise. The Respondent has claimed that as per the settlement, it was agreed that the parties shall stay in a separate independent accommodation. The Petitioner has, however, stated that no such settlement was arrived at. The Petitioner has taken the stand contradictory to his own testimony in the court. He has testified in his cross- examination that all the dowry articles of the Respondent as per the list Ex. PW1/R1 were returned to the Respondent. He denied the suggestion that any rented accommodation was taken by them in E-Block Shakurpur. He, also, denied that rent of the said accommodation was Rs. 1200/- per month or that father of the Respondent was/has been paying the rent. He, however, admitted voluntarily that all the dowry articles of the Respondent are lying in that rented accommodation. He, further, denied the suggestion that the articles are not lying in the house of real Bua (sister of father of the Respondent). If the Petitioner and the respondent had not taken any rented accommodation in pursuance of the settlement arrived at in CAW Cell, the Petitioner could not have known that the dowry articles are lying in that rented accommodation. The Respondent has, therefore, rightly claimed and testified in the court that the Petitioner stayed with her in a separate rented accommodation for 2-3 days in the year 2005 i.e. after the settlement arrived at in CAW Cell. The dowry articles were returned to the Respondent on 25.04.2005 and thereafter, the parties stayed in a rented accommodation for 2-3 days.”
  16. The evidence clearly disproves the appellant’s contention that the respondent left her matrimonial home and never returned. Rather, the record shows that the appellant had set up the matrimonial home in a rented accommodation, which he left and did not return to thereby abandoning the respondent. In his cross-examination, the appellant has also admitted that at the time of marriage the respondent had brought dowry with her. His testimony is extracted as under:- “At the time of my marriage respondent brought one bed, some utensils, one refrigerator, one washing machine and one almirah. We have returned all the articles of the respondent which belongs to her as per the list mentioned Ex. PW1/R1.”
  17. Interestingly, in the cross-examination of the respondent/wife a suggestion was given which was accepted by the respondent, thereby fortifying her stand that the appellant had demanded ` 1 lakh and one motorcycle from her and on her failure to arrange the same, he abandoned her. The suggestion which was accepted as correct by the respondent is “It is correct that petitioner demanded Rs. One Lac and one motor cycle from me. This demand was raised in the presence of my in-laws.”
  18. A person is not allowed to take advantage of his own wrong. The appellant has failed to prove his allegation of cruelty. Not just this, he had also demanded dowry and it is he who abandoned the respondent. Under the circumstances, there is no infirmity in the order of the learned trial judge inasmuch as the appellant is not entitled to a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Furthermore, Section 23(1)(a) of the Act makes it abundantly clear that a decree can be granted when the Court is satisfied that the petitioner is in no way taking advantage of his wrong. Such is not the case here, as it is the appellant who abandoned the company of his wife.
  19. Lastly, it is urged by learned counsel for the appellant that the parties have been living separately for the last 12 years and the marriage has virtually lost its meaning for them as they have reached a point of no return. She avers that there is no life in the marriage bond and that it should be dissolved for this reason. She has relied on para 26 of the Judgement in K. Srinivas Rao vs D.A. Deepa, 2013 (2) SCALE 735, reproduced as under:- “We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.”
  20. We have given thoughtful consideration to this argument of the learned counsel. While there is no dispute to the fact that the parties have not been living together for almost 12 years, yet a decree of divorce cannot be passed on this ground alone as has been observed by the Supreme Court in the Rao case (supra):- “Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act.”
  21. No doubt in Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558, the Supreme Court made a recommendation to the Union of India to amend the Hindu Marriage Act to incorporate irretrievable breakdown of marriage as a ground for divorce, yet till date this ground of divorce has not been added to the Act. Also in Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379, the Supreme Court held as under:- “On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature. Learned Counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned Counsel for the appellant.”
  22. The Supreme Court in Anil Kumar Jain vs. Maya Jain 2009 (12) SCALE 115 clearly defined the jurisdiction of the High Court while considering the ground of irretrievable breakdown of marriage as a ground for granting divorce. The court has stated as under: 17. …….This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.
  23. This Court thus lacks jurisdiction to dissolve a marriage on the doctrine of “irretrievable breakdown”.
  24. The findings of the Family Court that the respondent had no intention to desert the appellant cannot be faulted with especially when evidence shows that it was the appellant who had left her and the child in the rented accommodation where he stayed with them only for 2-3 days.
  25. The order of the family court does not warrant any interference. The appeal has no merit and is dismissed.


SEPTEMBER 21, 2016


Deserting 498A working wife looses right 2 enhanced maintenance. ALL Criminal cases quashed. Super Patna HC order

A 498a filing wife who treated her husband cruelly and deserted her husband with two small kids, tries to enhance the monthly maintenance. Patna HC sees thru her game and denies her any enhancement. It ALSO quashes ALL criminal cases filed by her !!

  • Wife leaves husband and two very small children. Leaves matri home in the middle of the night. Does NOT take any steps for kid’s custody
  • She is employed in a beauty parlor and earning * Her father owns a palatial house
  • On the other hand, husband is maintaining the kids and is providing best education for them
  • couple are divorced as lower court sees the wife’s desertion and cruelty,
  • wife tries to enhance her maintenance to Rs 15000 p.m.
  • Patna HC seeks her cruelty and desertion and refuses to enhance her maintenance
  • Patna HC also orders that “…all criminal cases as between the parties arising out of matrimonial alliance would stand terminated/ quashed, so that the parties are free from any further relationship or harassment….”

This is an excellent judgment that should be used by harassed husbands



Miscellaneous Appeal No.528 of 2012

Rajiv Roshan, S/O Sri Nand Kishore Lal, R/O Lal Kothi, Tripolia Gate, P.S.- Alamganj, Distt-Patna …. …. Appellant/s


Sarika, D/O Shri Ishwar Chandra Prasad, W/O Sri Rajiv Roshan, R/O Talabpar, Near Bus Stand, Nasriganj, Distt-Rohtas …. …. Respondent/s



Miscellaneous Appeal No. 204 of 2013

Sarika, D/O Shri Ishwar Chand Prasad, W/O Sri Rajiv Roshan, R/O Talabper, Near Bus Stand, Nasariganj, Distt-Sasaram …. …. Appellant/s


Rajiv Roshan, S/O Sri Nand Kishore Lal, R/O Lal Kothi, Tirpolia Ghat, P.S.- Alamganj, Distt-Patna …. …. Respondent/s


Appearance :
(In MA No.528 of 2012)
For the Appellant : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate
For the Respondent : Mr. Md. Khurshid Alam, Advocate

(In MA No.204 of 2013)
For the Appellant : Mr. Md. Khurshid Alam, Advocate
For the Respondent : Mr. D.K. Sinha, Sr. Advocate Mr. Abhinay Raj, Advocate





Date: 06-10-2016

  1. The two miscellaneous appeal being M.A. No. 528 of 2012 (Rajiv Roshan Vs. Sarika) and M.A. No. 204 of 2013 (Sarika Vs. Rajiv Roshan) arise out of judgment and decree dated 28.04.2012, passed by Addl. Principal Judge, Family Court, Patna Patna High Court MA No.528 of 2012 dt.03-10-2016 in Matrimonial Case No. 242 of 2004 by which divorce petition filed by the husband against his wife has been decreed, marriage was dissolved and the divorce granted with direction to the husband to pay Rs. 6,000/- per month as permanent alimony to the wife till her remarriage.
  2. Heard the counsel appearing on behalf of the husband Rajiv Roshan and wife Sarika in both cases and with their consent both the appeals are heard together and being disposed of.
  3. Husband, Rajiv Roshan had filed Matrimonial Case No. 242 of 2004 seeking decree of divorce against his wife Sarika, stating that the marriage between them was solemnized on 04.05.1997 as per Hindu customs and rites. Out of the wedlock one son Arnav was born on 25.01.1998 and another son Pranav was born on 09.12.2000 and from the very beginning the behaviour of the wife was not cordial, hence, divorce was sought on the ground of cruelty. The husband found it very difficult to live with the wife, and the wife on 08.06.2004 (which the wife alleges to be 09.07.2004) left the matrimonial house and the two sons and went alone to her Naihar. The wife appeared before the court below and stated that she led a good conjugal life and it was the husband who was cruel and thrashed her and kept the two children and also demanded dowry for which Complaint Patna High Court MA No.528 of 2012 dt.03-10-2016 Case No. 3235(C)/2008 under Section 498-A of the Indian Penal Code has been filed by the wife.
  4. Wife Sarika has also preferred M.A. No.204 of 2013 arises out of the order passed in Matrimonial Case No. 242 of 2004 for enhancement of alimony from Rs. 6000/- to Rs. 15,000/- per month till her remarriage so that she may maintain herself properly but has not disputed the decree of divorce. She has also demanded jewellery including 25 bhari gold and Rs. 2 lakhs given in her marriage which the husband has withheld.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  5. The learned court below came to a finding that the act of the wife leaving the matrimonial house in the night and did not take any legal step for custody of her two sons since 2004 shows her lack of love and affection towards her children, who were very small at that time, and also her behaviour was cruel towards her husband, hence, factum of cruelty was established against the wife and hence decree of divorce granted.
  6. It may be noted that by an interim order the learned court below had granted maintenance of Rs. 7,000/- per month. This was challenged by the husband before this Court in C.W.J.C. No. 3863 of 2010 and the interim maintenance of Rs. 7,000/- was reduced to Rs. 3,000/- per month by order dated 30.03.2010 passed by this Court while issuing notice to the wife. Patna High Court MA No.528 of 2012 dt.03-10-2016 However, the said writ petition was disposed of on 05.01.2012. The interim maintenance of Rs. 3,000/- was directed to be continued till final order passed in Matrimonial Case No. 242 of 2004 by the court below. In the final order permanent alimony has been fixed at Rs. 6,000/- to be paid to the wife by the husband till remarriage of the wife, while granting decree of divorce.
  7. The wife although has not challenged the decree of divorce but seeks enhancement of permanent alimony to Rs. 15,000/- per month till her remarriage as well as the ornaments and cash given at the time of marriage. It has been submitted by learned counsel for the wife, Md. Khurshid Alam, that the family of the husband has a palatial house over 5.5 kathas of land and all the four brothers of the husband including the husband are living jointly. The husband also has 5 kathas of agricultural land and one shop from which he gets monthly rent of Rs. 4,000/- and also stated that the husband has a wholesale business of medicine in the name and style of Rap India and Roshan Surgico, hence, seeks maintenance as per status of her husband under Section 25 of the Hindu Marriage Act, 1955.
  8. However, learned Senior Counsel Sri D.K. Sinha for the husband Rajiv Roshan, in his reply submitted that the two sons born in the year 1998 and 2000 are living with him and Patna High Court MA No.528 of 2012 dt.03-10-2016 they are pursuing their studies in the best schools of Patna, namely, St. Michael High School, Digha, Patna and St. Xavier High School, West Gandhi Maidan, Patna in Class XII and VIII respectively. He submits that he has no medicine business and is just a salesman in medicine shop and gets Rs. 3,000/- per month and monthly rent of Rs. 2,000/- and has to look after the two sons and pay a huge amount of money more than two lakhs per year, for their education. It has also been submitted that the wife is the owner of a beauty parlour in the name and style of “Care and Glow” and is earning a very high income and some of her employees are getting Rs. 15,000/- per month from the said beauty parlour. In fact, the father of the wife has a palatial house at Nasriganj, Rohtas as well as an old mill at Delha Par, Gaya having two acres of land apart from 50 acres of agricultural land near Nasriganj, Rohtas. He also submits that the wife has filed a complaint case under Section 498-A of the I.P.C., Maintenance Case No. 102/2015, which is pending in the Family Court at Ranchi and Guardianship Case No. 31/2012, which is pending before the learned Principal Judge, Family Court, Patna. He, thus, submits that he has very little income and with that he has to provide maintenance and studies of the two sons who are growing up.
  9. From the facts aforesaid, it emerges that the father of the wife has a palatial house and substantial agricultural lands and if not as the owner she has admitted that she is working in the beauty parlour receiving income. The husband, on the other hand, is looking after the children maintaining them, who are pursuing their studies and has only a house where the joint family lives and some salary as well as rent.
  10. The finding of the trial Court on the aspect of divorce is not challenged by the wife. She abandoned the matrimonial house and her small children in 2004 never to return. She never claimed custody of her children nor she ever tried to meet them although guardianship case has been filed much after in 2012. Cruelty is not challenged. She is a working lady herself.
  11. The wife has not been living with her husband since 2004 and not having challenged the divorce, the decree of divorce is upheld. The two sons are living with their father who is providing the best of education to them in a reputed school at Patna. The wife even if not owner of beauty parlour but admits that she is a working lady. She has abandoned her two sons long back and had taken no steps for their custody since 2004 although a guardianship case has been filed recently in 2012.
  12. Considering the aforesaid facts, since the Patna High Court MA No.528 of 2012 dt.03-10-2016 husband has means to provide the best of education to the sons incurring huge amount of money as stated by the husband himself and that the wife is a working lady, the order dated 28.04.2012 passed by Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 requires no interference.
  13. It is also made clear that all criminal cases as between the parties arising out of matrimonial alliance would stand terminated/ quashed, so that the parties are free from any further relationship or harassment.
  14. In the result, both the appeals are dismissed and the order passed by the Additional Principal Judge, Family Court, Patna in Matrimonial Case No. 242 of 2004 dated 28.04.2012 is upheld.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick  


    (Nilu Agrawal, J.)

    Navaniti Prasad Singh, J.

    I agree

    (Navaniti Prasad Singh, J.)


    AFR/NAFR       AFR

    CAV DATE 05.09.2016

    Uploading Date 06.10.2016

    Transmission Date

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