Bombay High Court Nagpur Bench Hears Wife's Appeal Against Divorce Decree Granted on Ground of Cruelty. Court Examines Permissibility of Seeking Divorce as Alternate Relief in a Petition Filed Under Section 9 of Hindu Marriage Act, 1955 for Restitution of Conjugal Rights.

Appeal under Section 19 of the Family Courts Act, 1984 against decree of divorce granted by Family Court on ground of cruelty.

Appellant-wife sought setting aside of decree of divorce.

Aggrieved by judgment of Family Court allowing husband's petition for divorce on ground of cruelty.

Family Court, Nagpur, by judgment dated 8-6-1998, allowed husband's petition and granted decree of divorce on ground of cruelty.

Whether failure on the part of the Family Court to frame the issue pertaining to the claim for restitution of conjugal rights has resulted in vitiating the judgment? Whether a decree for divorce could be sought as a relief in a petition filed under Section 9 of the said Act for restitution of conjugal rights? Whether on an amendment permitting a prayer for grant of divorce in such proceedings being granted, the same relates back to the date of filing of the proceedings? Whether decree for divorce needs to be granted on the ground that there has been an irretrievable breakdown of the marriage? Whether the respondent is entitled for a decree of divorce on the ground of cruelty? What relief?

Appellant contended that Family Court erred by not framing issue on restitution, that seeking restitution condoned earlier cruelty, that prayers for restitution and divorce were mutually destructive, and that statutory two-year period under Section 13 had not lapsed when initial proceedings were filed; amendment circumvented this bar. Respondent argued that wife's refusal to cohabit and unsubstantiated allegations of cruelty justified divorce; failure to frame issue on restitution did not vitiate proceedings; irretrievable breakdown of marriage existed after 20 years of separation; second marriage was contracted on 30-11-1998.

The appellant – wife has preferred the present appeal under Section 19 of the Family Courts Act 1984 being aggrieved by the judgment dated 8-6-1998 passed by the learned Judge, Family Court, Nagpur whereby the petition filed by the respondent – husband for grant of divorce has been allowed. After hearing the respective Counsel and in view of the material on record, the following points arise for determination. (1) Whether failure on the part of the Family Court to frame the issue pertaining to the claim for restitution of conjugal rights has resulted in vitiating the judgment? (2) Whether a decree for divorce could be sought as a relief in a petition filed under Section 9 of the said Act for restitution of conjugal rights? (3) Whether on an amendment permitting a prayer for grant of divorce in such proceedings being granted, the same relates back to the date of filing of the proceedings? (4) Whether decree for divorce needs to be granted on the ground that there has been an irretrievable breakdown of the marriage? (5) Whether the respondent is entitled for a decree of divorce on the ground of cruelty? (6) What relief?

The respondent-husband filed HMP No.364/1994 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights on 22-12-1994. He later amended the petition to add an alternate prayer for divorce on ground of mental cruelty. The Family Court allowed the amendment on 19-10-1996 and renumbered the petition as A/604/1996. By judgment dated 8-6-1998, the Family Court granted a decree of divorce on the ground of cruelty. The appellant-wife filed First Appeal No.308/1998 before the Bombay High Court under Section 19 of the Family Courts Act, 1984. The High Court reserved judgment on 20-11-2013 and pronounced it on 6-1-2014.

• Family Courts Act, 1984: 19
• Hindu Marriage Act, 1955: 9, 13
• Code of Criminal Procedure, 1973: 125