Delhi High Court sets aside family court order granting separation instead of divorce

Delhi High Court
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The Delhi High Court has recently observed that the Family Court cannot grant a relief the statutory grounds for seeking which are not established, merely because it feels that it would be “good” for the parties.

The Division  Bench of Justice Vipin Sanghi and Justice Jasmeet Singh allowed the appeal of the husband (Appellant) challenging the judgment dated 02.07.2018 passed by the Family Court, Shahdara District, wherein the Family Court has granted relief of Judicial Separation, instead of the relief of divorce as had been sought by the appellant. On the other hand, the wife (Respondent) challenged the findings returned by the Family Court, Shahdara District against her in the said judgment.

The marriage of the parties took place on 14.04.2006 according to Hindu rites and ceremonies. A girl child was born out of the wedlock on 23.09.2007, who is in the custody of the respondent. The appellant filed the petition for divorce on 13.07.2012, on the ground of cruelty under section 13(1)(ia) of the Hindu Marriage Act. The parties have been staying separately since 29.05.2009. The appellant has levelled various allegations against the respondent, for ignoring him and his family members; giving importance to her own family while avoiding to perform her matrimonial obligations; excessively talking on the phone with her family members at odd hours of the night; showing a non-cooperative and disrespectful attitude towards the appellant and his parents. The appellant further alleged that the respondent constantly threatened him and his family members to desert them, and implicate them in false cases, amongst others.

The respondent, in her written statement, as well as her appeal, has denied all the allegations and rather blamed the appellant for committing physical and mental cruelty on the respondent for bringing less dowry. The respondent has stated that it was the appellant, who had thrown her out of the matrimonial house on 29.05.2009, after giving her beatings, and thereafter, he never made any efforts to bring her back. The respondent has stated that she has always been ready and willing to go back to the house of the appellant, and it is the appellant who is spoiling their matrimonial life.  On 19.08.13, the Family Court granted Rs 10,000 per month to the respondent and the minor child as an interim maintenance.

While holding that the respondent-wife was guilty of matrimonial misconduct, the Family Court was of the opinion that respondent, in fact, was doing what was asked by her family members, without applying her independent mind. The Family Court, thus, after relying on Dastane (supra), came to the conclusion that while the grounds of cruelty and desertion were attracted and fully proved, it was not a fit case where divorce should be granted and, instead, granted judicial separation. In addition, the respondent was advised to think again, independently, without any pressure of her family members, in order to settle and re-establish her matrimonial home.

While considering the appeal, the High Court observed that the appellant husband did all that he could, to cohabit with his wife. However, the respondent-wife refused to cohabit with him, and made false allegations of dowry demand without any proof whatsoever, and left the matrimonial home without any reason and refused to return after that. Thus, it is evident to the Court that she perpetrated mental cruelty upon the appellant, and that nothing remains in this marriage.

The aggrieved spouse may, instead of seeking the relief of divorce, seek a decree of judicial separation on the same grounds on which he/she may seek divorce therefore the Court held that the law gives an option to the aggrieved spouse/petitioner to seek either of the two reliefs. While judicial separation does not end the matrimonial relationship and the marriage is preserved – after a declaration is made establishing the matrimonial misconduct by the other spouse, and it entitles the aggrieved spouse/petitioner to deny conjugal relationships to the other spouse/respondent, a decree of divorce puts an end to the jural relationship of marriage between the parties, thus liberating them from their marital bond. Whereas a decree of judicial separation can be rescinded by the same court; a decree of divorce can be reversed only by a judicial order: either in review, or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.

Thus, when a decree of judicial separation is passed, the High Court held that the aggrieved spouse is no longer bound to cohabit with the other, even though the matrimonial bond continues to subsist. The parties cannot remarry during the period of judicial separation, since the status of marriage subsists. On the other hand, the parties cease to remain husband and wife, once a decree of divorce is granted, and the parties are free to remarry once the statutory period of appeal expires, and there is no restraint order passed by a competent court against remarriage.

Therefore, the High Court observed that the approach of the Family Court in ordering judicial separation, instead of divorce is faulty, to our mind.

In the bench’s view, What the Family Court failed to appreciate is that, firstly, it is for the petitioner- who approaches the Family Court, to decide whether he/she wishes to obtain the relief of divorce, or of judicial separation. It is not for the Court to decide to substitute the relief sought by the petitioner – from divorce to judicial separation, or vice versa. If the petitioner is able to establish the ground to seek one or the other of these reliefs, the Family Court cannot decide for the petitioner, that it is better for him/her, or the other/respondent spouse, to accept the relief that he/ she has not sought in his/ her petition. The two reliefs of Divorce or Judicial Separation are not–in that sense, larger or lesser reliefs, respectively. To test the approach of the Family Court, one may ask:- if the Family Court was of the view that the respondent-wife may come out of the influence of her family, could the Family Court have granted a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, even though the same was never prayed for by the appellant?

In view of the Court  the Family Court could not have done it, for the simple reason that the petitioner before it had not sought that relief.

“The powers of the Family Court to change the nature of the relief sought is absent. The Family Court cannot be heard to tell the petitioner before it, what is “good” for him/her. It may render its advice to the parties when the matter is pending before it, but when it comes to adjudication, the Family Court is bound to bear in mind the relief sought by the petitioner. If the petitioner has established the grounds for seeking the relief as sought, he/she should be granted the same. If not, he/she should be denied the relief sought. Conversely, the Family Court cannot grant a relief, the statutory grounds for seeking which, are not established, merely because it feels that that would be “good” for the parties”, the Court further observed .

To the relief granted in the  case on the appellant’s Divorce Petition the Bench opined that instead of granting a decree of Divorce– even though the ground therefore was held established, the appellant was granted Judicial Separation, in the hope that the respondent will rejoin the appellant’s company.” The grant of the said relief is a contradiction in itself. On the one hand, the Family Court expects the respondent to come out of the influence of her brother and father, and resume cohabitation with the appellant, but, on the other hand, fails to appreciate that the respondent cannot seek to resume cohabitation with the appellant, when the decree of Judicial Separation is operating against her, unless the appellant consents. So far as the appellant is concerned, he had expressed his intention to end the relationship, not only by filing the Divorce Petition, but also by filing the present appeal. The Family Court was swayed by the appellant’s statement that he was willing to resume cohabitation with the respondent when the matter was being heard by the Family Court. But the respondent did not respond positively, and the appellant never prayed to the Family Court to amend his prayer to seek a decree of Judicial Separation.

“The Family Court should have realised that if the respondent has been unable to come out of the influence of her family members for the last 13 years, there is very little likelihood of her doing so in the near future. Moreover, the appellant could not have been asked to keep waiting, and to put his life on hold, in the hope that the respondent would change her ways – after 13 long years, and show her willingness to resume cohabitation with the appellant. The judgment of the Family Court is seemingly based more on optimism and hope, rather than the actual factual matrix of the case,” said the Court.

“On a proper consideration of the facts and circumstances of this case, we are thus of the view that the Family Court erred in not granting the decree of divorce to the appellant and, instead, granting a decree of Judicial Separation to the appellant. We, accordingly, set aside the impugned judgement passed by the Family Court in so far as it grants a decree of Judicial Separation to the appellant-husband. Further, we find the respondent guilty of cruelty under Section 13 (1)(ia) of the Hindu Marriage Act, 1955,” the order reads.

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