Delhi HC upholds denial of divorce to man who admitted living with another woman and having children with her, citing his own misconduct

The parties married on 10 June 2015 and began living separately on 17 July 2017. The appellant issued a notice referring to desertion but later petitioned for divorce on the ground of cruelty.

During the divorce proceedings, the respondent produced school and bank records indicating that the appellant was in a relationship with another woman and had children with her. When recalled for examination, the appellant admitted the documents; the Family Court dismissed his petition under Section 23(1)(a) of the Hindu Marriage Act, 1955, finding that he was taking advantage of his own wrong, and imposed costs of ₹2 lakh.

The appellant appealed that decision.

1. Whether the appellant’s admitted relationship with another woman and children from that relationship constituted his own wrong, disentitling him to divorce under Section 23(1)(a) of the Hindu Marriage Act, 1955.

2. Whether the Family Court’s dismissal of the divorce petition and award of costs warranted appellate interference.

Section 23(1)(a) of the Hindu Marriage Act, 1955 requires a court, before granting matrimonial relief, to be satisfied that the petitioner is not taking advantage of his or her own wrong.

In Hirachand Srinivas Mangaonkar v. Sunanda, (2001) 4 SCC 125, the Supreme Court held that continuing adulterous conduct may constitute a continuing wrong and that a petitioner cannot rely on illegality or immorality to obtain matrimonial relief.

The Court distinguished Sushila v. Joginder, MAT.APP.(F.C.) 236/2018, observing that the effect of Section 23(1)(a) had not been considered there.

The appellant’s relationship and children with another woman were supported by the school and bank records and were not denied; the appellant admitted the documents.

The Court concluded that, in seeking divorce while his own conduct amounted to a wrong under Section 23(1)(a), the appellant could not obtain relief by relying on that conduct.

Applying Hirachand, the Court found no basis to fault the Family Court’s reliance on Section 23(1)(a), and also considered the burden further proceedings in Delhi would place on the respondent.

It left the respondent at liberty to apply for release of the ₹2 lakh deposited by the appellant with the Registrar General.