This case concerns an appeal u/s.19 of the Family Courts Act, 1984 assailing the Judgment and Decree of a Principal Judge, Family Courts, Delhi whereby the divorce petition filed by the husband u/ss.13(1A) and 13(1)(ib) of the Hindu Marriage Act, 1955 (“HMA”) was dismissed.

The primary contention raised by the husband was that there was no valid marriage between the parties, though matrimonial ceremonies were conducted, the husband was under the influence of a sedative substance at that time rendering the marriage voidable and the parties had been living separately for a number of years. The wife contended that she was always willing to rejoin the company of the husband but the husband deserted her without sufficient cause and reason, and she filed a petition for restitution of conjugal rights.

A Division Bench of the Delhi High Court held that s.5 HMA provides for essential conditions for a valid Hindu Marriage, the contravention of which results in a marriage being void as per s.11 and the husband’s case does not relate to contravention of any stipulated conditions. His allegations of being under the influence of a sedative substance could make the marriage voidable for which a petition for annulment had to be presented within one year of discovery. The Bench further held that the dispute about the validity of marriage was challenged by the husband in the wife’s petition for restitution of conjugal rights, and the issue was decided against him and had attained finality.

The Bench further held –

            “after passing of a decree of judicial separation or restitution of conjugal rights, when the parties fail to resume cohabitation for a period of one year or more, a decree of divorce could be granted at the instance of either of the parties… the Court is empowered to examine the conduct of the party seeking divorce and if it finds that the relief is being sought on the basis of the petitioner’s own wrongdoing, the Court may refuse to grant such relief”.

It was further held –

            “On one hand, he disputed the validity of the marriage itself and on the other hand, he sought dissolution of the very same marriage under the garb of Sections 13(1)(ib) and 13(1A) of the HMA. A party cannot approbate and reprobate simultaneously, i.e., disputing the factum of marriage while simultaneously praying for its dissolution under the HMA. Therefore, the said conduct of the appellant evidently falls in the category of ‘own wrong’ and is sufficient to attract the provision of Section 23(1)(a) HMA. Whereas, no positive act has been committed by the respondent to create a situation so as to make it impossible for the appellant to resume cohabitation.”.

The appeal was dismissed.