Naveen Kumar Gupta v. Rashu Gupta

V. B. GUPTA, J. May 23, 2008 ac

* HIGH COURT OF DELHI : NEW DELHI MAT APPEAL No.36 of 2008 % Judgment reserved on: 14th May, 2008 Judgment delivered on: 23rd May, 2008 Sh.Naveen Kumar Gupta S/o Sh. Vinod Kumar Gupta, R/o AA-81, Shalimar Bagh, Delhi. …..Appellant Through: Mr.Manohar Singh Sahi, Adv. Versus Smt. Rashu Gupta D/o Sh. R.D. Gupta R/o 74, Sharda Niketan, Pitampura, Delhi. …..Respondent Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? No 3. Whether the judgment should be reported in the Digest? No V.B.Gupta, J. The present appeal under section 28 of the Hindu Marriage Act, 1955 (for short as the "Act") has been filed against the judgment and decree dated 05.03.08 passed by Sh. Gurdeep Singh, Additional District Judge, Delhi, praying that the observations in respect of Issue no. 1 of cruelty decided against the Appellant/Husband vide Para no. 22 of the Judgment may be deleted or in alternative specific orders may be passed to the effect that the observations made in para no. 22 of the said judgment in respect of Issue no.1 decided by the Court of Sh. Gurdeep Singh, ADJ, Delhi, shall not be used in criminal trial court or in any other court in respect of case FIR no. 493/2000 under section 498-A/406 IPC, P.S. Saraswati Vihar, Delhi as against the Appellant/Husband and his other family members. 2. The marriage between the appellant and the respondent was solemnized on 23.11.89 as per Hindu rites and ceremonies at Delhi. After the marriage the parties lived as husband and wife and cohabited with each other and no issue was born from this wedlock. A male child was adopted by the parties. Later on, there started differences between the parties and the parties started residing separately from each other from 15.05.97. The wife moved an application before the CAW cell, Nanak Pura, New Delhi against the husband and his family members which is pending before the Trial court. Apart from the above criminal case, the wife also filed a divorce petition under section 13 (1) (ia) of the Act against the Appellant/husband. On 23.10.2000, the Appellant also filed a divorce petition against the respondent/wife under section 13(1) (ia) and 13 (1) (ib) of the Act. Later on, both the cases were clubbed together for joint trial. 3. The petition was contested on merit. The averment of the appellant were controverted and on the other hand the counter allegations were levelled. 4. From the pleadings of the parties, vide order dated 31.7.03 the petition filed by the respondent/husband was also clubbed alongwith this petition and following issues were framed. 1. Whether after solemnization of marriage, the respondent has treated with cruelty? 2. Relief. 5. The respondent examined herself as PW1 and filed her evidence by way of affidavit. The cross examination of the respondent was deferred on 18.2.05 and thereafter she was not further cross examined. 6. On 5.3.08 when both the parties were present in person before the trial Court, it enquired from the appellant/husband that, when both parties were interested for dissolution of their marriage then why he was contesting the case. On this the Appellant/Husband, replied that he had no objection if his marriage with the respondent/wife is dissolved. On this, the Trial Court asked the Appellant/Husband to give a statement. Consequently statement of the Appellant/Husband was recorded in the divorce petition titled as "Smt. Rashu Gupta v. Sh. Naveen Kumar Gupta", which is as follows: "I am the respondent in this case. I have also filed petition for dissolution of marriage against the petitioner. We are living separately for the last 11 years and the marriage has already been irretrievably broken down. I have no objection if the marriage is dissolved. I may also be permitted to withdraw my petition for dissolution of marriage as the same stands infructuous in view of my above statement." 7. At the same time, the Tri