HC rejects linking cohabiting place to divorce plea
21 May 2012 1:51 AM GMT
The Delhi high court has sent a divorce case back to a family court in Dwarka, Delhi, for reconsideration. The wife had petitioned for a divorce claiming that living together under a same roof does not make a marriage, but the family court had dismissed the petition saying that the couple might have cohabited elsewhere.
Reena (name changed) and Sarvesh (name changed) had filed for divorce, saying that they are living under the same roof for more than 18 years, but they could not reconcile their differences and that they have decided to dissolve their marriage by mutual consent. They had also stated that for the last five years they have not cohabited despite living together. The couple had gotten married in 1992. They have a 17-year-old daughter.
The family court, however, had dismissed the petition on the ground that the couple have stated in the petition that they have not cohabited under the same roof for the last five years, but there was a possibility that they could have cohabited at some other place. The family court had also taken into consideration that the wife was still the nominee of her husband's ULIP policy.
The family court had thus held that parties were still performing their marital obligation towards each other and have also not contended that they did not cohabit as husband and wife at all in the last five years.
Aggrieved by the decision, the wife had knocked the Delhi high court door, where Justice Veena Birbal observed, 'No inference could have been drawn by the learned principal judge that parties are still performing their marital obligations towards each other. There is specific affidavits of non cohabitation. There are averments in the petition that they are not living together as husband and wife which are duly verified.'
Wife's counsel told the court that it has been categorically stated in the petition that though the parties are living together under the same roof, they have not cohabited for the last five years. 'Parties are not temperamentally compatible neither in terms of their respective approach for leading life nor could they adjust to the post marital responsibilities despite having married for 19 years. Their efforts for reconciliation have failed and they have agreed to dissolve their marriage by decree of divorce by mutual consent,' said the counsel.
The wife said in her petition that she would not seek any maintenance or alimony from her husband. She had stated in the petition that their daughter would stay with her till she turns 18 years and, thereafter, she would have the right to choose between the parents. Meanwhile, she would not deny the father of visitation rights.
'Reading the entire material on record, including the joint petition and respective affidavits of the parties, it cannot be said that they are cohabiting as husband and wife elsewhere as is observed by the learned family judge,' said Justice Birbal.
'In view of the above discussion, the impugned order cannot be legally sustained and accordingly the same is set aside. Family Court shall take up the petition of the parties and record their statement on oath and, thereafter, shall pass appropriate order on it in accordance with law,' ordered the high court.
Reena (name changed) and Sarvesh (name changed) had filed for divorce, saying that they are living under the same roof for more than 18 years, but they could not reconcile their differences and that they have decided to dissolve their marriage by mutual consent. They had also stated that for the last five years they have not cohabited despite living together. The couple had gotten married in 1992. They have a 17-year-old daughter.
The family court, however, had dismissed the petition on the ground that the couple have stated in the petition that they have not cohabited under the same roof for the last five years, but there was a possibility that they could have cohabited at some other place. The family court had also taken into consideration that the wife was still the nominee of her husband's ULIP policy.
The family court had thus held that parties were still performing their marital obligation towards each other and have also not contended that they did not cohabit as husband and wife at all in the last five years.
Aggrieved by the decision, the wife had knocked the Delhi high court door, where Justice Veena Birbal observed, 'No inference could have been drawn by the learned principal judge that parties are still performing their marital obligations towards each other. There is specific affidavits of non cohabitation. There are averments in the petition that they are not living together as husband and wife which are duly verified.'
Wife's counsel told the court that it has been categorically stated in the petition that though the parties are living together under the same roof, they have not cohabited for the last five years. 'Parties are not temperamentally compatible neither in terms of their respective approach for leading life nor could they adjust to the post marital responsibilities despite having married for 19 years. Their efforts for reconciliation have failed and they have agreed to dissolve their marriage by decree of divorce by mutual consent,' said the counsel.
The wife said in her petition that she would not seek any maintenance or alimony from her husband. She had stated in the petition that their daughter would stay with her till she turns 18 years and, thereafter, she would have the right to choose between the parents. Meanwhile, she would not deny the father of visitation rights.
'Reading the entire material on record, including the joint petition and respective affidavits of the parties, it cannot be said that they are cohabiting as husband and wife elsewhere as is observed by the learned family judge,' said Justice Birbal.
'In view of the above discussion, the impugned order cannot be legally sustained and accordingly the same is set aside. Family Court shall take up the petition of the parties and record their statement on oath and, thereafter, shall pass appropriate order on it in accordance with law,' ordered the high court.
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