Monthly Archives: May 2016

Woman unable to prove domestic violence looses  complete case at magistrate Court !! Husband and Co win, even though exparte !!

A woman files domestic violence case against her husband and some of the in laws … She seeks right to residence, and lakhs and lakhs of money… She looses  the entire case as she is unable to prove domestic violence and shared household against many of the respondents. She loses the entire case even though the respondents go ex parte


Smt. Sonika vs (1) Sh. Ritesh on 25 May, 2016

Delhi District Court

Smt. Sonika vs (1) Sh. Ritesh on 25 May, 2016

Author: Pooja Aggarwal

IN THE COURT OF MS.POOJA AGGARWAL: METROPOLITAN MAGISTRATE­02: MAHILA COURT:SOUTH DISTRICT: SAKET COURT: NEW DELHI 
CC No: 616/1/14 (22.12.2014)

Unique Case ID: 02406R0364882014

Jurisdiction of Police Station: Saket
Smt. Sonika, 

W/o Sh. Ritesh,

D/o Sh. Ajit Singh, 

R/o 1822, Sector­3,

Pushp Vihar, New Delhi. ……….Aggrieved 
                                    Versus 
(1) Sh. Ritesh, (husband)

S/o Sh.Ram Kishan,

(2) Smt Kamlesh (Mother­in­law)

W/o Sh.Ram Kishan,

(3) Sh. Rinku, (Brother­in­law)

S/o Sh.Ram Kishan,

(4) Ms Versha, (Sister­in­law)

D/o Sh.Ram Kishan.

All R/o 18/352, Trilok Puri,

Delhi­110091 …………..Respondents

Date of Institution : 19.12.2014
Date of Arguments : 02.05.2016
Date of Judgment : 25.05.2016

CC No. 616/1/14

PS Saket Sonika v Ritesh & Ors Page 1 of 12

                                       JUDGMENT 

  1. By way of the present application under Section 12 of the Protection of Women From Domestic Violence Act, 2005, Smt. Sonika (hereinafter referred to as “the aggrieved”) has sought various reliefs against her Husband, Mother in Law, Brother in law and Sister in Law (hereinafter referred as “the respondents”) including Residence Order under Section 17 and 19, Monetary relief under Section 20 and Compensation order under section 22 of the Act.
    FACTS AS PER THE AGGRIEVED
  2. Aggrieved Sonika got married to respondent no.1 on 19.02.2007 according to Hindu rites and rituals and out of the wedlock a son was born on 24.02.2008. From the first day of marriage the respondents taunted her for not bringing sufficient dowry, used to abuse and beat her and pressurized her to bring cash from her parents. They also taunted and tortured her for motorcycle which her father had not given as per the dowry demand. When on the first rakhi, her brother gave Rs 2100/­ to her, the respondents taunted her “Shadi ke baad pehli rakhi hai, kam se kam saare ghar walon ke liye shagun aur kapde bhejne chaiye the’.
  3. Most of the times the respondent no.2 did not allow her to go into the kitchen and did not provide her sufficient food. The aggrieved was also thrown out of the matrimonial home by the respondents many times. The respondent no.3 and 4 also beat her and taunted her for insufficient dowry saying “sarkari naukri wala to raja hota hai, use biwi bhi dhang ki CC No. 616/1/14 milni chahiye thi par humare palle to bhukon ki ladki pad gayi”.
  4. The respondents also did not take care of her during her pregnancy threatening her “agar ladki paida hui toh use maar denge” and that when on the namkaran ceremony of her son, her parents came with gifts and cash of Rs 11,000/­ the respondent no.3 and 4 threw the gifts on the floor and respondent no.2 taunted ‘yeh kya tuche se kapde le kar aa gaye ho, pehla bacha hai, voh bhi ladka kam se kam sab ke liye gold ke gifts laaane chaiye the’.
  5. The respondent no.1 threatened to divorce her and remarry but she tolerated all cruelties and atrocities for the sake of her matrimonial home and child. All her stridhan, jewellery and dowry articles are in the custody of the respondents no.1 and 2 which they have not handed over despite requests.
  6. Due to continuous mental and physical and lack of proper food, she contracted TB in April 2014 and was sent by the respondents to her parental home without them taking care of her or getting proper treatment for her saying “tujh achoot ka ilaj ab tere ma baap karayenge, Agar zabardasti yahan rahi toh jaan se jayegi” and after some days respondent no.1 also left her son at her parental house saying “Main ab doobara sadi karnga aur yeh bacha meri dusri shaadi main rukawat dalega’. Now she resides at her parental house. Hence the present case seeking :
    Residence Order under Section 17 and 19: directing the respondents to allow the aggrieved to reside peacefully in her matrimonial home CC No. 616/1/14 without causing any act of domestic violence in the form of putting wrong words, gestures and manhandling with her in the future; restraining respondents from entering into the room which would be handed over to her after passing of the order and causing any hindrance or interference in her peaceful living; or directing the respondent no.1 to arrange for rented accommodation as per his status and persons on their behalf be restrained from entering into the rented accommodation which would be provided to her; restraining the respondents from transferring, alienating or parting with the possession of the matrimonial home. Monetary relief under Section 20: Rs. 5,00,000/­ towards loss due to destruction/damage or removal of property from her control; Rs. 2,00,000/­ towards any other loss or physical or mental injury as specified in clause 10(d); Rs. 12,000/­ per month towards food, clothes, medication and other basic necessities; damages. Compensation order under section 22 : Directing the respondents to pay Rs 2,00,000/­ towards emotional distress caused due to the domestic violence committed.
  7. On the basis of the pleadings of the aggrieved, the DIR was called for and all the four respondents were duly summoned who entered appearance and were directed to file their reply and the respondent no1 was also directed to file his income affidavit. However, the respondents stopped appearing and were proceeded ex­parte vide order dated 17.11.2015 and an application to set aside the said order was also dismissed on 07.01.2016.
  8. To prove her case the aggrieved examined herself as CW1 tendering her evidence by way of affidavit (Ex.CW1/1) and her father Sh Ajit Singh as CW2 who tendered his evidence by way of affidavit (Ex.CW2/1) with both being on similar lines as the application of the aggrieved and neither witnesses relying on any documents. Both the witnesses were CC No. 616/1/14 duly cross­examined by the respondents.
  9. Final arguments advanced as also the entire evidence on record has been duly considered.
  10. By virtue of Section 2(a), the reliefs under the Protection of Women From Domestic Violence Act, 2005 can be availed by a woman only if she is in a domestic relationship with the respondents and was subjected to domestic violence by them.
    a) Domestic Relationship
  11. With the respondent no.1 ie Husband: In the present case, the aggrieved Smt Sonika has claimed herself to be the legally wedded wife of the respondent no.1 Ritesh having married him on 19.02.2007. As CW1 she has testified to the same fact as has the CW2 ie her father. During their cross­examination no questions were put to the witnesses denying the factum of marriage of the aggrieved with the respondent no. 1 and hence the factum of the aggrieved residing with the respondent no. 1 in a domestic relationship of marriage is deemed to have been admitted by the respondents.
  12. With the respondent no.2,3 and 4 ie Mother in Law, Brother in law and Sister in Law: The testimony of the aggrieved in her evidence by way of affidavit Ex. CW1/1 is conspicuously silent as to Smt Kamlesh being her Mother­in­law; Sh. Rinku to be her Brother­in­law or Ms Versha to be her Sister­in­law. No evidence has been led by the aggrieved to prove that she is related to the respondent no.2 to 4 by CC No. 616/1/14 marriage. In view of the same the relationship of the aggrieved with the respondents no.2 to 4 remains unproved.
    b) Shared Household
  13. The entire testimony of CW1 and CW2 is silent as to the place where the aggrieved Sonika resided in a domestic relationship with the respondents or even singly within the meaning of Section 2(s) of the Act. No address has been testified to by either CW1 or CW2 as being the shared household nor have the complainant witnesses testified as to any interest of the respondents or the aggrieved as to ownership or tenancy either jointly or by either of the aggrieved or the respondents or as to any right, title, interest or equity in any property where they resided together. The aggrieved has also not led any evidence to prove whether there is any joint family property of which respondent is a member. In the absence of any evidence either oral or documentary in respect of existence of shared household, no presumption or inference as to its existence can be drawn and hence the factum of shared household of the aggrieved with the respondents remains unproved. Also as during the cross examination of CW1 she has testified that respondent no.4 Varsha has got married prior to her marriage and is living in Narela at her matrimonial home and hence qua the respondent Varsha the existence of shared household has been disproved.
    c) Infliction of Domestic violence
  14. As per testimony of CW­1 Sonika and CW­2 Ajeet Singh from the first CC No. 616/1/14 day of her marriage on 19.02.2007, the respondents taunted her for not bringing sufficient dowry, used to abuse and beat her and pressurized her to bring cash from her parents and that they also taunted and tortured her for motorcycle which her father had not given as per the dowry demand. These allegations/ testimonies have gone unrebutted during the cross examination of the witnesses. Be that as it may, it is a settled proposition of law that the case of the aggrieved / complainant is required to stand on its own legs. From the entire testimony on record, it is evident that the testimony of CW­1 as to her being abused, beaten and pressurized by the respondents to bring cash is vague as is the testimony as to taunts as well as dowry demands. CW­1 and CW­2 have not testified as to the exact amount which was being demanded from the aggrieved nor have they mentioned any date, time or period when such demands were made. Hence their testimony being vague does not inspire confidence in the absence of any corroborative evidence except self serving oral testimony.
  15. CW­1 has also testified that when on the first rakhi, her brother gave Rs 2100/­ to her, the respondents taunted her “Shadi ke baad pehli rakhi hai, kam se kam saare ghar walon ke liye shagun aur kapde bhejne chaiye the’. The same even if accepted to be true does not fall under any of the criteria of domestic violence as prescribed under Sec. 3 of the PWDV Act as there is nothing to indicate that the same endangered either her physical or mental health or otherwise caused any injury or harm to her. CC No. 616/1/14 It is duly noted that though CW­2 has testified as to similar facts, his testimony being hearsay cannot be looked into to prove this allegation of the aggrieved.
  16. The testimony of CW­1 as to the respondent no.2 not allowing her to go into the kitchen and not providing her sufficient food is also vague and beyond the purview of Sec. 3 of PWDV Act as it does not fall in any of the heads of domestic violence enumerated therein in the absence of sufficient material particulars being testified to by CW­1. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
  17. The aggrieved as CW­1 has also testified that she was thrown out of the matrimonial home by the respondents many times but the said testimony is vague without any date or period being testified to by her. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
  18. The testimony of CW­1 as to respondent no.3 and 4 beating her and taunting her for insufficient dowry saying “sarkari naukri wala to raja hota hai, use biwi bhi dhang ki milni chahiye thi par humare palle to bhukon ki ladki pad gayi” is also vague, does not inspire confidence in the absence of any corroborative evidence in the form of any earlier complaint. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
  19. The testimony of CW­1 as to respondents not taking care of her during her pregnancy as also threatening her “agar ladki paida hui toh use maar denge” also does not fall within the purview of Sec. 3 of PWDV Act as she has not made any specific allegations against any respondent nor has she mentioned any specific date, time and place. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
  20. Her testimony as to the Devar and Nanad throwing the gifts brought by her parents on the Namkaran Ceremony of her son as also taunts by the mother­in­law does not fall within the purview of Sec. 3 of PWDV Act as the same cannot be said to be either physical, sexual, verbal, emotional or economic abuse.
  21. CW­1 has further testified as to her husband threatening to divorce her and remarry. However, the testimony is vague and in the absence of any corroborative evidence in the form of any previous complaint as also the lack of material particulars as to the date and time, it does not inspire confidence. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved to prove this allegation of the aggrieved.
  22. While CW­1 has testified that all her stridhan, jewellery and dowry articles are in the custody of the respondents no.1 and 2 which they have not handed over despite requests, she has not led any evidence to prove the nature of her stridhan, jewellery and dowry articles or the date or CC No. 616/1/14 occasions when the request to return the same were made and in the absence of the same, merely on the basis of her self serving oral testimony, economic abuse by the respondent no.1 and 2 remains unproved. Even though CW­2 has also testified to similar facts, the same being hearsay cannot be looked into to prove this allegation of the aggrieved.
  23. CW­1 has further testified that due to continuous mental and physical and lack of proper food, she contracted TB in April 2014 and was sent by the respondents to her parental home without them taking care of her or getting proper treatment for her saying “tujh achoot ka ilaj ab tere ma baap karayenge, Agar zabardasti yahan rahi toh jaan se jayegi” and after some days respondent no.1 also left her son at her parental house saying “Main ab doobara sadi karnga aur yeh bacha meri dusri shaadi main rukawat dalega‘. She has however not relied upon any documents to prove the same and except oral testimony no other evidence regarding the same has come on record.
  24. The oral testimony of complainant witnesses also does not inspire confidence as during her cross examination CW­1 has admitted that for the first time she had been detected with tuberculosis in April 2013 when she was staying at her matrimonial home but denied that she has purposefully not mentioned about the same in her affidavit. Hence the aggrieved has not been forthcoming with all the facts pertaining to the case. Her uncorroborated oral testimony also does not inspire confidence CC No. 616/1/14 as during cross examination while she testified that she did not make any complaint to Women Cell Saket, improved upon it saying that she went to Women Cell Saket for registration of her complaint but they did not register the same and as no action was taken by the police she did not file the same in the court, her father as CW­2 testified as to her lodging a complaint with CAW Cell and the same being withdrawn as they were not satisfied with the same. The same assumes significance as neither of the witnesses has placed on record the copy of the complaint to CAW Cell which might have corroborated the testimonies of the witnesses.
  25. In the totality of facts and circumstances of the present case, with the testimony of both CW­1 and CW­2 being vague, without material particulars and remaining uncorroborated as CW­2 has merely deposed as to hearsay evidence, the domestic violence by the respondents against the aggrieved within the meaning of Sec. 3 of PWDV Act remains unproved.
    DECISION
  26. With the domestic relationship and shared household remaining unproved qua the respondent no.2 to 4 as also with the shared household and the domestic violence remaining unproved qua all the four respondents, the aggrieved has failed to prove herself to be an aggrieved within the meaning of section 2(a) of the Act.
  27. Hence in the totality of facts and circumstances of the case, with the aggrieved being unable to discharge the burden cast upon her, her CC No. 616/1/14 application under Section 12 of the Protection of Women From Domestic Violence Act, 2005 is dismissed.
  28. File be consigned to the Record Room after necessary compliance.

       Pronounced in open court                         

       on 25.05.2016 (Pooja Aggarwal)

                               Metropolitan Magistrate­02 (Mahila Court), 

                                      South, Saket Courts, New Delhi.

CC No. 616/1/14
 

Woman looses Fake DV filed 18 years after separation targetting Delhi house ! Delhi Sessions !

In this case wife and husband have parted ways approx 18 years before filing of the DV case. Husband alleges that she had an affair etc (not proven here), however its accepted that the parties have parted ways 18 years ago and have NOT lived together ever since. Further, there have been NO legal efforts for restitution

The woman happily files a DV case 18 years later ! & seeks possession of property where she has NEVER lived with the husband, claiming that to be shared household !! Since the learned MM does not seem to appreciate the facts, husband runs to the Sessions court. Hon Sessions court sees the woman’s game and dismisses her case !!

Marriage in 1995… DV case and mess at sessions court level 21 years later. If the wife goes on appeal this will drag on another decade. time and money wasted because women can file such cases !!


IN THE COURT OF SH. LOKESH KUMAR SHARMA

ADDITIONAL SESSIONS JUDGE­04

& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI

Criminal Appeal No. 199 of 2015

ID No. 02406R0230612015

Neville Tuli
S/o Late Sh Ramjeedas Tuli
R/o B­40, Shanti Kunj
Church Road, New Delhi­110070 ………….Appellant

Vs.

Ms. Zothanpari Hrahsel
R/o A­53, Second Floor
Defence Colony, New Delhi­110024 ………..Respondent

Instituted on : 22.07.2015
Argued on : 16.05.2015
Decided on : 20.05.2016

J U D G M E N T

  1. Present appeal u/s 29 of DV Act has been preferred by the appellant against the impugned order dated 28.5.2015 passed by the court of Ms. Monica Saroha, Ld. MM­02 (Mahila Court), South­East District, New Delhi, in CC No. 227/3/13, case titled as “Zothan Pari Hrashel v. Neville Tuli.”, whereby the application of the appellant herein, seeking dismissal of the complaint moved by him, was dismissed by the Ld. MM. Feeling aggrieved from the aforesaid order, the appellant has preferred the present appeal on the following amongst other grounds : That the impugned order passed by Ld. MM was erroneous and bad in law as the Ld. MM had erred in not appreciating the facts and circumstances of the present case and the Ld. MM had also failed to consider the case law referred by him in support of his contentions and the Ld. MM had passed the impugned order on the basis of her own surmises and conjectures and hence the same deserved to be set aside in appeal. It was stated further that the complaint of the respondent herein was not maintainable as she was not falling within the definition of an “aggrieved person” as the parties were admittedly not residing together since last more than 12 years and were residing separately in different cities.
  2. It was pleaded further that the respondent herein had given wrong information related to her rendering all possible assistances and sacrifices made by her for the appellant to raise his career socially, financially and economic status to help out the appellant and also about his personal and professional life and also that at the fag end, the appellant herein had deprived her of even means for subsistence and thereby committed an emotional and economic abuse upon her due to which she was constrained to file a petition under section 12 of the Protection of Women from Domestic Violence Act, 2005 ( in short “PWDV Act”).
  3. Appellant herein had also filed his detailed reply to the said petition wherein he had cited himself to be the victim at the hands of respondent herein and had claimed that the respondent was having an extra­marital relationship with a Dutch Diplomat and had continued the same even after her marriage which had caused great mental torture, shock and agony to him and the parties had thus mutually decided to live separately from each other. On merits all factual assertions except those essentially forming the part of record had been denied as wrong and incorrect and an application for dismissing the said complaint was also filed by him before the court of Ld. MM on the ground that the respondent herein did not qualify to be an “aggrieved person” as defined under the PWDV Act. The said application of the appellant herein was dismissed by the Ld. MM vide impugned order, which is the subject matter of challenge before this court in this appeal.
  4. Respondent had also appeared and filed her detailed reply to the appeal wherein she had denied all the allegations and had stated that there was no illegality or infirmity in the order passed by the Ld. MM, as she was categorically qualifying to be an “aggrieved person” as provided under the Act.
  5. Brief facts that had given rise to filing of the present revision petition are succinctly given as under:­
    • Marriage between the appellant and the respondent herein was solemnized on 22.3.1995 at Hotel Leela Kempensky, Mumbai, Maharashtra as per Hindu Rights and Customs and the marriage was duly got registered.
    • No child was born out of this wedlock and the parties by mutual consent had agreed to end their relationship as husband and wife in June, 1997 and since then, they were living separately in Delhi.
    • It is also the admitted case of the respondent in her complaint filed before the Ld. MM that in the last 10 ­12 years, whenever she used to contact the respondent/appellant herein, or otherwise confronted him in order to revive the relation and reconcile the marriage, the respondent/appellant herein had never made any attempt to visit her or to know about her well being.
  6. I have heard Sh. Dharmender Arya, Ld. Counsel appearing for the appellant and Sh. Mehmood Pracha, Ld. Counsel for the respondent, who had appeared to address arguments on 11.01.2016. However, he had not appeared for the last two dates of hearing, i.e. 09.03.2016 and 16.05.2016.
  7. For the reasons as given in the accompanying application filed u/s 5 of Limitation Act, duly supported by the affidavit of Ld. Counsel, the delay, if any, committed in filing of present appeal stands condoned as it has been held by time and again by the superior courts that endeavour of the courts should be on disposal of a case on its merits rather than disposing it on technical grounds and lacunas.
  8. In order to appreciate the contentions of the parties in a better manner, it shall be worth examining the definitions of terms “aggrieved person” , “domestic violence” as well as “shared household”, as appearing in the Act, which have been defined in Section 2(a), (f) and (s) of the PWDV Act, which are reproduced here as under:
    • “Section 2. Definitions.­­ …(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
    • …(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as joint family.
    • …(s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”
  9. The main thrust of arguments of the appellant in the present appeal is non­qualification of the respondent herein to be an “aggrieved person” living in a “shared household”, as defined under the PWDV Act. In this regard, reliance has also been placed on the following citations:
  10. The law laid down by our own Hon’ble High Court in the matter of Vijay Verma (supra) and also followed in the matter of Adil (supra) is being reproduced here as under:
    • “10­­­­­­­­ Under Domestic Violence Act, the first pre­ condition is that the applicant must be an aggrieved person. Aggrieved person is a person defined in Section 2 (a) of the Act. The domestic relationship must be there between the aggrieved person and respondent to invoke Domestic Violence Act. This Court had clarified the legal position in respect of domestic relationship in Vijay Verma Vs. State NCT of Delhi & Anr, criminal Misc. No.3878 of 2009 and observed as under : ­ 5 Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(F) as under: ………an application under protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. …………However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survive.
    • 11………..It must be kept in mind that resort of Domestic Violence Act cannot be done to enforce property rights. For enforcement of property rights, the parties are supposed to approach civil court. Resort to Domestic Violence Act can be done only where there is urgent requirement of wife to be maintained and provided residence when because of domestic violence, she had been rendered homeless and she had lost source of maintenance. Domestic Violence Act is not meant to enforce the legal rights of property, neither an interim order can be passed without first prima facie coming to conclusion that a domestic relationship existed between the party and the applicant was an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act.
    • Further, in the matter of “Hima Chugh Vs Pritam Ashok Sapadhule &Ors” Crl.M.C.3273/2011 dated 10.04.2013, in para 11(7), it was held by the Hon’ble High Court of Delhi as follows:­
    • This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only when one is living in shared house hold with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of UK, or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living miles away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence.
      Further, in the matter of “Harbans Lal Malik Vs Payal Malik, Crl. Rev. P, No.253/2010 dated 29.07.2010, it was held by the Hon’ble High Court of Delhi in para 12 as follows:­ ’12 The definition speaks of living together at any point of time, however it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, the person can be a respondent but if the relationship does not continue and the relationship had been in the past and is not in the present, a person can not be made respondent on the ground of a past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship can not be said to be there”.
  11. In the light of the aforesaid observations made by the Hon’ble High Court in its pronouncements, it has been submitted by Ld. Counsel for the appellant that Ld. MM had gone factually wrong while holding that for the purpose of calculating the period for which the couple had stayed together or in a city in which they had stayed was an important and crucial issue which could have been determined only after adducing evidence on record by both the parties and unless and until such evidence was produced on record, it could not have been stated by the Ld. MM in the impugned order that the complainant was qualified to be an “aggrieved person” as defined under the PWDV Act.
  12. It was argued further that since respondent had not stayed jointly with the appellant for since last more than 18 years, therefore, question of committing any kind of domestic violence upon her did not even arise. The act of appellant in not providing her residence, might have amounted to a financial deprivation for which respondent could have sought enforcement of her property rights by approaching the civil court. However, the same was not covered under the definition of “Domestic Violence” as provided in the PWDV Act.
  13. Further the Ld. MM had gone wrong in holding that in none of the citations relied upon by the parties, it was held that merely because the spouses were living in different cities, they did not have the “domestic relationship” and further that as per the law laid down in the aforesaid judgments, when a person had moved out of the “shared household” to set up a separate house, then, said person could not be said to be the member of a shared household any longer.
  14. I find myself in agreement with the contentions and submissions of the Ld. Counsel appearing for the appellant that as per the admitted case of the parties, since the year 1997, they were not residing together. It is not even the case of the respondent herein that she had never moved out of her matrimonial home to permanently settle at a different place or that she had left any of her belongings at the house of the appellant herein so as to enable her to visit the appellant or to reside with him, for whatever duration of time, which was available to her, which categorically goes to show that actual and real intention of the respondent herein was to permanently move out of the house of the appellant herein and to settle separately.
  15. Further more, from the date of their separation in the year 1997, till date, neither of the parties had made any efforts for restitution of their conjugal rights or had demanded any of the articles/properties left out by either of them at the other’s places, which fact further categorically demonstrates that both of them had the intention to permanently settle down at separately places with no future plans to live together. Hence, once the respondent herein had been living separately from the appellant since the year 1997, the question of commission of any domestic violence upon her does not arise at all and once no domestic violence had been committed upon her by the appellant since the date of their separation, then, I am afraid to hold if she would ever qualify for being an “aggrieved person” , having a “shared household”, entitling to the reliefs sought by her in her complaint filed under section 12 PWDV Act before the court of Ld. MM.
  16. There cannot be any denial to the fact that the parties still continued to be legally wedded husband and wife and the appellant herein is legally duty bound to maintain his wife, if she is incapable to maintain herself. However, in any such situation, the remedy available to the respondent herein lies in some other civil or matrimonial court under the respective laws governing the parties. Therefore, I have no hesitation in holding that the respondent herein cannot claim such reliefs in this present proceedings under section 12 of PWDV Act.
  17. Although, the respondent herein had claimed before the Ld. Trial Court for issuance of directions to the appellant herein to hand over her the peaceful and vacant possession of the appropriate portion of the “shared house hold” which is H. No. B­40, Shanti Kunj, Church Road, near Hanuman Mandir, Delhi­110070. However, in her entire petition filed before the Ld. Trial Court, there is not even a single averment about her having ever lived at the aforesaid premises with the appellant herein at any point of time whatsoever and it is her own case that since after her marriage with the appellant, she had shifted from Mumbai to Delhi and they had lived together in a rented accommodation at Jor Bagh and then she had shifted to premises No. A­57, Defence Colony, New Delhi.
  18. In the light of my aforesaid observations and discussion, I am of the considered opinion that the Ld. MM had gone factually wrong in holding that despite there being an admitted case of the parties living separately, since the year 1997 still the evidence was required to arrive at the conclusion about their respective allegations and contentions. Therefore, the impugned order, as passed by the Ld. MM is not only factually erroneous but the same is also not in accordance with the settled legal propositions and principles, as churned out from the ratios of the citations of our Hon’ble High Court.
  19. As a net result of the above observations, the appeal stands allowed and the impugned order is set aside and the complaint filed u/s 12 of the PWDV Act by the respondent herein before the Ld. MM is held to be not maintainable in its present form and thus stands dismissed being not maintainable as filed.
  20. TCR, if any, be sent back to the Ld. Trial Court with a copy of this judgment.
  21. Appeal file be consigned to record room after compliance of all other necessary formalities, in this regard.

announced in the
open court on                                                    (LOKESH KUMAR SHARMA)
20th May, 2016                                                 Additional Sessions Judge­04 & Spl. Judge (NDPS)
South East, New Delhi

Illtreament, False & unsubstantiated DV case causing embarrassment to husband are all cruelty-Delhi HC

The Hon Delhi HC decrees that multiple instances of cruelty combined with a false and unsubstantiated DV case that is an afterthought is cruelty. A very important decision, discussing key incidents in the couple’s life and exposing the cruel wife !

Husband seeks divorce from Cruel wife. ADJ court refuses divorce.

Husband appeals to HC

HC notices that the wife has treated the husband and his family with cruelty on multiple instances. Inter alia the Hon HC also concludes “…. As noticed above, the respondent let the said proceedings be dismissed for want of prosecution. She did not make good the aforesaid allegations against the appellant, and his family members. A party, who makes serious allegations in legal proceedings against the opposite party, and drags the opposite party to face such legal proceedings, must take responsibility for the same and such a party cannot be permitted to walk away by subsequently allowing the proceedings to be dismissed in default, or for want of prosecution. No party can be permitted to abuse the process of law by filing proceedings on the basis of allegations, to establish which, no effort has been made when the time comes. The implication of such conduct of the respondent is that the allegations, when made, were known to the respondent to be concocted, and were made to harass the appellant and exploit the provisions of law. When she made the allegations and dragged the appellant to Court (as threatened by her in Ex PW1/2), she must have been conscious about the pain, agony and suffering to which the appellant would be subjected….”

Husband gets divorce on grounds of cruelty !!


  • IN THE HIGH COURT OF DELHI AT NEW DELHI

    Judgment reserved on: 14.10.2015
    Judgment delivered on: 23.05.2016

    MAT.APP. 30/2008

    ACJ                                          ….. Appellant
    Through:      Mr. R.K. Sharma, Advocate

    versus

    RJ                                          ….. Respondent
    Through:      Mr. Vinish Phogal and Mr. Y.S. Chouhan, Advocates.

    CORAM:

    HON’BLE MR. JUSTICE VIPIN SANGHI

    JUDGMENT

    VIPIN SANGHI, J.

    1. The present appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred as ‘HMA’) has been preferred to assail the judgment & decree dated 31.07.2012 passed in HMA No.89/2006 by the Additional District Judge (ADJ), Delhi, whereby the learned ADJ dismissed the petition preferred by the appellant/husband under Section 13(1)(ia) of the HMA, seeking a decree of dissolution of marriage against the respondent/wife on the ground of cruelty.

    2. The facts as delineated in the petition are that the marriage between the parties was solemnized on 19.05.1997 at Girdi, Bihar, according to Hindu rites and ceremonies. After the customary performance of the Gauna Ceremony on 10.12.1997, she was brought to the matrimonial home and the marriage was consummated. No issue was born out of the wedlock.

    3. The appellant asserted three specific instances of insult and injury against the respondent. Firstly, the appellant asserts that shortly after the respondent’s arrival to Delhi, she started pressurizing him to move out of the matrimonial home and live separately from his parents, but the appellant was not agreeable. After that, her behaviour changed towards the appellant and his family members. It is alleged that on 20.12.1997, at around 11.00 p.m. while the parties were sleeping, the respondent, without any provocation hit him on his eye and told him that she wants to make him blind. He informed his parents about the incident the very next morning. Secondly, he asserts that on 02.02.1998, one Sh. Bhim Singh Paswan-a family friend, visited their house and the appellant asked her to prepare tea; on this, she slapped him and told him that he deserves a slap, not tea. He felt humiliated and remained mentally upset for days. Thirdly, the appellant claims that on 10.02.1998, one of his relatives, Sh. Gangadhar visited the home of the parties. The father of the appellant requested her to get a glass of water; upon this, she told him that she is not a maid and started misbehaving/using abusive language. He claims that because of such erratic behaviour of the respondent, he could not sleep for nights and suffered mental trauma. He further claims that the appellant and his family members tried their best to keep the respondent happy, but she was adamant on living separately from his parents. The father of the respondent visited the appellant on 15.04.1998, and informed him that the respondent did not wish to live in Delhi and wanted a divorce. The respondent left the matrimonial home on 16.04.1998. He asserts that the respondent and her parents did not provide him with their address; therefore, he could not bring her back to the matrimonial home. Thereafter, there has been no correspondence between the parties.

    4. In the written statement filed by the respondent-wife, she denied all the allegations. She claimed that the appellant and his family members were making dowry demands. She stated that at the time of marriage, the father of the respondent had given an amount of Rs. 3,00,000/- as dowry. After the marriage, she was left at her parental home with an assurance that she would soon be called to Delhi to join her matrimonial home. In the month of November 1997, the appellant asked her to bring an amount of Rs. 2,00,000/- if she wanted to join the matrimonial home, since the father of the respondent had not provided sufficient dowry at the time of the marriage. The father of the respondent paid the amount of Rs. 2,00,000/- to the father of the appellant and, thereafter, on 10.12.1997, she was taken by the appellant to the matrimonial home. In the month of January 1998, the father of the appellant asked her to bring an amount of Rs.50,000/-, but she refused. Thereafter, the behaviour of the appellant and his family members changed drastically. The family members of the appellant started torturing her mentally. The appellant refused to perform his conjugal duties. It is stated that on many occasions, she was physically abused by the mother and sister of the appellant. She stated that the appellant misappropriated her Stridhan, due to which, she filed a complaint with the CAW Cell. She further stated that in the month of April, the father of the respondent visited Delhi. He saw her poor health condition, and requested the appellant and his family members to allow her to accompany him to Bihar. Thereafter, she left for Bihar with her father. In the month of July 1998, the respondent requested the appellant to take her back to the matrimonial home, upon which, he asked her to bring a sum of Rs.50,000/-, if she wanted to come back. On 10.12.1998, the respondent came back to the matrimonial home along with her father and cousin brother. She was refused entry and since then she has been residing with her uncle in Delhi. The incidents dated 20.12.1997, 02.02.1998 and 10.02.1998 were denied. She stated that the same are concocted.

    5. In the replication filed by the appellant, he reiterated and reaffirmed his stand. The appellant categorically denied the allegations with regard to the dowry demands. He stated that previous complaints filed by the respondent are false and were withdrawn by her. Thereafter, she again filed a complaint with the CAW Cell.

    6. After the issues were framed, both the parties led evidence in support of their case. The Trial Court after assessing the evidence placed on record dismissed the petition.

    7. The Trial Court came to the conclusion that the version of the petitioner/appellant regarding the first incident dated 20.12.1997 aforesaid was not believable, as there are contradictions in the testimonies with regard to the date of incident, and with regard to whether the petitioner was taken to hospital for the treatment.

    8. In relation to the second incident dated 02.02.1998, the Trial Court concluded that there is inconsistency and contradiction in the testimonies of the witnesses with regard to the presence of mother and father of the appellant at the time of the incident. The Trial Court also concluded that Sh. Bhim Singh Paswan (PW-4) is a tutored and an interested witness. It was further observed that the version of the petitioner/appellant is improbable, as no one would again ask a daughter-in-law to prepare tea, if she is already misbehaving in the manner alleged.

    9. The Trial Court, in respect of the third incident dated 10.02.1998, observed that the petitioner/appellant, in his testimony, stated that he asked the respondent to bring a glass of water, whereas the other witness claimed that the father of the appellant asked the respondent to get a glass of water. It was also observed that Gangadhar (PW-5) stated that at the time of the incident, the appellant’s sister was also present, but none of the other witnesses stated so. The court further concluded that there are contradictions in the statement of the petitioner/appellant with regard to the respondent raising her hand to slap, as none of the witnesses stated the same. Therefore, incident dated 10.02.1998 was also disbelieved.

    10. The Trial Court further concluded that the letter dated 30.08.1998 (Ex. PW1/2) written by the respondent to the father of the petitioner appears to be a letter written out of frustration. The parties had lived together for a period of four months, which is very less to conclude that the marriage has in any manner broken down. The Trial Court also concluded that the dismissal of the petition filed by the respondent – for restitution of conjugal rights under section 9 of the HMA, does not entitle the petitioner/appellant to get his petition under section 13 (1)(ia) of HMA allowed, as the same does not establish the ground of cruelty. The Trial Court further concluded that the CAW Cell complaint filed by the respondent cannot be considered as a ground for divorce, as the same is still pending. Consequently, the petition was dismissed. Hence, the present appeal.

    11. Learned counsel for the appellant submits that since the very beginning of the matrimonial relationship, the respondent started misbehaving with the family of the appellant. The respondent started making unreasonable demands to live separately from the parents of the appellant. The appellant refused to live separately from his parents, expressing that he is their only son and the only support system for his old age parents. Thereafter, the behaviour of the respondent changed drastically towards him and she started behaving erratically. He submits that the specific incidents mentioned in the petition were proved by the testimonies of the witnesses. They clearly establish that the appellant was subjected to mental and physical cruelty by the respondent repeatedly.

    12. Learned counsel submits that the Trial Court failed to appreciate and discuss the testimony of the independent witness, i.e. Sh. Chiranjee Lal Raghav (PW-3), the President of the Residence Welfare Association, Paschim Vihar, New Delhi. He asserts that Sh. Chiranjee Lal Raghav has known the appellant and his family for over 20 years. Sh. Chiranjee Lal Raghav, in his evidence by way of affidavit, clearly stated that the present matrimonial dispute was never about dowry demand and harassment. He also deposed that he was present at the Police Station, Paschim Vihar on 05.08.1999, when the negotiation between the families of the parties were undertaken, and the father of the respondent demanded a separate residence for the respondent. Learned counsel submits that the testimony of Sh. Chiranjee Lal Raghav has gone unchallenged and proves the case of the appellant.

    13. Regarding the incident dated 02.02.1998, learned counsel submits that the testimony of the Sh. Bhim Singh Paswan (PW-4), was disbelieved by the Trial Court merely on the ground that he stated that his children had taken coaching from the appellant. Therefore, he was assumed to be a tutored and an interested witness. He submits that the Trial Court erred in concluding that he is an interested witness. This finding is without any basis. He further submits that in matrimonial disputes, family members, friends and neighbours are the most relevant and natural witnesses. Therefore, Sh. Bhim Singh Paswan (PW-4) is a credible witness. It would be inappropriate to expect an outsider to come and depose. Reliance is placed on Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288.

    14. Regarding the incident of 10.02.1998, learned counsel submits that the testimony of Sh. Gangadhar (PW-5) was disbelieved on the ground that he claimed that his sister was present at the time of the incident, whereas none of the other witnesses, who were examined, claimed so. He submits that Sh. Gangadhar is an independent witness and his testimony has gone unchallenged, and the same clearly establishes the allegation of cruelty made by the appellant in the petition.

    15. Learned counsel submits that the Trial Court has dismissed the petition on the ground that there are contradictions and inconsistency in the statements of the appellants/petitioners witnesses. He argued that the contradictions are minor, and that the deposition should be looked at as a whole. Minor contradiction in the testimony of witnesses, which do not go to the root of their testimonies, and minor discrepancies are natural.

    16. Reliance is placed on Ramesh Chand v. Suresh Chand, 188 (2012) DLT 538, wherein it was observed:

  • | “8. ….A civil case is decided on balance of
    | probabilities. In every case, there may appear
    | inconsistencies in the depositions of witnesses however,
    | the depositions have to be taken as a whole. Minor
    | inconsistencies which do not affect the main substance of
    | the case, are to be taken in correct perspective along with
    | the other evidences, including documentary evidence which
    | is led in the case. Assuming that a witness is not stating
    | correctly in some places does not mean that he is to be
    | held lying generally and hence an unreliable witness. This
    | is so because it has been repeatedly said by the Supreme
    | Court that the doctrine Falsus in Uno, Falsus in Omnibus
    | does not apply in India.”

  • 17. Learned counsel submits that in the written statement filed by the respondent, in Para 16, she stated that the mistakes committed by the respondent during her stay at the matrimonial home were condoned by the appellant. He submits that the acts of cruelty committed by the respondent were never condoned, as the parties never cohabitated after she left the matrimonial home, i.e. on 16.04.1998. She was never reinstated to her original status.

    18. He further submits that the Trial Court failed to take into consideration the events subsequent to the filing of divorce petition. The respondent filed a petition under section 9 of HMA for restitution of conjugal rights in 2001, which was dismissed vide order dated 01.05.2003. He submits that the learned ADJ, while dismissing the said petition, made observations against the respondent in the order, that the respondent had put a condition, that appellant herein be directed to live and maintain her in a separate house from his parents. The learned ADJ came to a conclusion that in view of serious allegations, it would not be possible for the parties to live together happily.

    19. Learned counsel further submits that the Trial Court has failed to appreciate the contents of the letter dated 30.08.1998 (Ex.PW-1/2) written by the respondent to the father of the appellant, wherein, she has leveled various bald and serious allegations against the family members of the appellant. She threatened to insult the appellant and his family in public, i.e. in front of neighbours and relatives. She also threatened to get them arrested. In the said letter, she also stated that she has no desire to stay in the matrimonial home.

    20. Learned Counsel submits that the said conduct of the respondent also demonstrates that she has lost respect for the appellant and the same amounts to mental cruelty. Reliance is placed on Ravi Kumar v. Jumlidevi, JT 2010 (2) SC 213, wherein, it was observed:

  • | “18. It may be true that there is no definition of cruelty
    | under the said Act. Actually such a definition is not
    | possible. In matrimonial relationship, cruelty would
    | obviously mean absence of mutual respect and understanding
    | between the spouses which embitters the relationship and
    | often leads to various outbursts of behaviour which can be
    | termed as cruelty. Sometime cruelty in a matrimonial
    | relationship may take the form of violence, some time it
    | may take a different form. At times, it may be just an
    | attitude or an approach. Silence in some situations may
    | amount to cruelty. Therefore, cruelty in matrimonial,
    | behaviour defies any definition and its category can never
    | be closed. Whether husband is cruel to his wife or the wife
    | is cruel to her husband has to be ascertained and judged by
    | taking into account the entire facts and circumstances of
    | the given case and not by any pre-determined rigid formula.
    | Cruelty in matrimonial cases can be of infinite variety –
    | it may be subtle or even brutal and may be by gestures and
    | words. That possibly explains why Lord Denning in Sheldon
    | v. Sheldon (1966) 2 All E.R. 257 held that categories of
    | cruelty in matrimonial cases are never closed.”
  • 21. He further submits that the respondent, with an intention to harass the appellant, embroiled him in malicious litigation by moving an application under section 12 of Domestic Violence Act, 2005 on 24.07.2010 and filed a petition under section 125 Cr.P.C. on 13.04.2011. Both the cases filed by the respondent were dismissed in default for non prosecution on 19.02.2015 and 24.11.2014, respectively. In these petitions, the respondent made serious baseless allegations against the appellant. He further submits that even the present appeal had been adjourned for more than 5 year, on one pretext or the other, by the respondent. The said approach and subsequent conduct of the respondent clearly tantamount to mental cruelty. Reliance was placed on Vishwanath Agrawal (Supra), wherein, the Supreme Court has held that events subsequent to filing of the divorce petition can be taken into consideration.

    22. Learned counsel submits that the facts of the present case demonstrate the mental pain and agony suffered by the appellant due to the conduct of the respondent during her stay at the matrimonial home, and after she left the matrimonial home. Reliance is placed on Samar Gosh v. Jaya Gosh (2007) 4 SCC 511, wherein the Supreme Court, while dealing with mental cruelty, laid down the following guidelines:

  • | “101. No uniform standard can ever be laid down for
    | guidance, yet we deem it appropriate to enumerate some
    | instances of human behaviour which may be relevant in
    | dealing with the cases of “mental cruelty”. The instances
    | indicated in the succeeding paragraphs are only
    | illustrative and not exhaustive:
    |
    | (i) On consideration of complete matrimonial life of the
    | parties, acute mental pain, agony and suffering as would
    | not make possible for the parties to live with each other
    | could come within the broad parameters of mental cruelty.
    |
    | (ii) On comprehensive appraisal of the entire matrimonial
    | life of the parties, it becomes abundantly clear that
    | situation is such that the wronged party cannot reasonably
    | be asked to put up with such conduct and continue to live
    | with other party.
    |
    | (iii) Mere coldness or lack of affection cannot amount to
    | cruelty, frequent rudeness of language, petulance of
    | manner, indifference and neglect may reach such a degree
    | that it makes the married life for the other spouse
    | absolutely intolerable.
    |
    | (iv) Mental cruelty is a state of mind. The feeling of
    | deep anguish, disappointment, frustration in one spouse
    | caused by the conduct of other for a long time may lead to
    | mental cruelty.
    |
    | (v) A sustained course of abusive and humiliating
    | treatment calculated to torture, discommode or render
    | miserable life of the spouse.
    |
    | (vi) Sustained unjustifiable conduct and behaviour of one
    | spouse actually affecting physical and mental health of the
    | other spouse. The treatment complained of and the resultant
    | danger or apprehension must be very grave, substantial and
    | weighty.
    |
    | (vii) Sustained reprehensible conduct, studied neglect,
    | indifference or total departure from the normal standard of
    | conjugal kindness causing injury to mental health or
    | deriving sadistic pleasure can also amount to mental
    | cruelty.
    |
    | (viii) The conduct must be much more than jealousy,
    | selfishness, possessiveness, which causes unhappiness and
    | dissatisfaction and emotional upset may not be a ground for
    | grant of divorce on the ground of mental cruelty.
    |
    | (ix) Mere trivial irritations, quarrels, normal wear and
    | tear of the married life which happens in day-to-day life
    | would not be adequate for grant of divorce on the ground of
    | mental cruelty.
    |
    | (x) The married life should be reviewed as a whole and a
    | few isolated instances over a period of years will not
    | amount to cruelty. The ill conduct must be persistent for a
    | fairly lengthy period, where the relationship has
    | deteriorated to an extent that because of the acts and
    | behaviour of a spouse, the wronged party finds it extremely
    | difficult to live with the other party any longer, may
    | amount to mental cruelty.
    |
    | (xi) If a husband submits himself for an operation of
    | sterilisation without medical reasons and without the
    | consent or knowledge of his wife and similarly, if the wife
    | undergoes vasectomy or abortion without medical reason or
    | without the consent or knowledge of her husband, such an
    | act of the spouse may lead to mental cruelty.
    |
    | (xii) Unilateral decision of refusal to have intercourse
    | for considerable period without there being any physical
    | incapacity or valid reason may amount to mental cruelty.
    |
    | (xiii) Unilateral decision of either husband or wife after
    | marriage not to have child from the marriage may amount to
    | cruelty.
    |
    | (xiv) Where there has been a long period of continuous
    | separation, it may fairly be concluded that the matrimonial
    | bond is beyond repair. The marriage becomes a fiction
    | though supported by a legal tie. By refusing to sever that
    | tie, the law in such cases, does not serve the sanctity of
    | marriage; on the contrary, it shows scant regard for the
    | feelings and emotions of the parties. In such like
    | situations, it may lead to mental cruelty.”
  • 23. Learned counsel submits that admittedly, the parties have been living separately for more than 17 years. It is fair to conclude that the matrimonial bond between the parties is beyond repair. He submits that since the marriage between the parties have become fictional, therefore, it would be wrong to support it with a legal tie. The same has led to mental cruelty to the appellant.

    24. On the other hand, learned counsel for the respondent supports the judgment of the Trial Court. He submits that the judgment is based on correct appreciation of evidence, and does not suffer from any infirmity, much less any perversity.

    25. I have carefully considered the submissions of learned counsel for the appellant and perused the record laid in the case, including the impugned judgment.

    26. The submissions of the learned counsel for the appellant are threefold. Firstly, the minor inconsistency and contradictions in the deposition of the witnesses does not change the substance of the case. Secondly, the subsequent event and conduct of the respondent after the filing of the divorce petition has amounted to mental cruelty. Thirdly, the matrimonial bond between the parties is beyond repair and that itself has caused, and continues to cause mental cruelty to the appellant. Therefore, it would be wrong to support it with a legal tie.

    27. In relation to the incident dated 20.12.1997 (when the respondent allegedly slapped the appellant on his eye), the appellant (PW-1), in his cross examination deposed that he did not consult any doctor after the incident as there was no visible injury on his eye. The father of the appellant (PW-2), in his cross examination, deposed that the appellant did visit the doctor after being hit on his eye. He also deposed that his eye had swollen and healed after three days. The mother of the appellant (PW-6), in her cross examination, deposed that eye of the appellant had swollen and she took him to the nearby hospital. The contradictions in the testimonies of the witnesses with regards to the incident dated 20.12.1997, do not inspire confidence and cannot prove the aforesaid alleged incident. Thus, I find no reason to interfere with the finding of the learned ADJ.

    28. In relation to the incident of 02.02.1998, the Trial Court, in paragraph 24 of the judgment observed that:

  • | “24. The petitioner does not say that any other person were
    | present at the time of said incident. The father and mother
    | of petitioner does not say in their affidavit that they
    | were present in the house at the time of incident. When
    | father was asked he stated that he was present but mother
    | stated that apart from herself, her son, her husband and
    | Sh. Paswan were present. Bhim Singh Paswan is a tutored
    | witness. He stated that his children had taken coaching
    | from petitioner. There are contradictions in the
    | testimonies of the witnesses. Sh. Paswan stated that after
    | the incident he immediately left the home. There are
    | inconsistency and contradiction in the testimony of
    | witness. The version is also improbable as no one would ask
    | a daughter-in-law to prepare tea if she is already
    | misbehaving in the manner alleged. Therefore, the
    | petitioner failed to prove this incident also.” (emphasis
    | supplied)

  • 29. The appellant (PW-1), in his examination in chief stated that:

  • | “On 2.2.98, one Bhim Singh Paswan had visited our house and
    | asked the respondent to prepare tea for him, at this she
    | slapped me, on account of which I felt humiliated. … …
    | … .”

  • 30. In his cross examination, he deposed that the incident of 02.02.1998 had indeed, occurred. The father of appellant (PW-2), in his evidence by way of affidavit stated that:

  • | “10. That on 02.02.1998 when Sh. Bhim Singh Paswan, a
    | family friend who has known the family from past 15 years
    | visited the house of the petitioner, petitioner asked the
    | respondent to prepare a cup of tea for Sh. Paswan, at this
    | respondent gave a tight slap to the petitioner right across
    | his face… … … .”

  • 31. In his cross examination, PW-2 confirmed that he was present at the time of the aforesaid incident. The mother of the appellant (PW-6), in her evidence by way of affidavit stated on the same lines. In her cross examination, she deposed that she was present when the aforesaid incident took place.

    32. Bhim Singh Paswan (PW-4), in his evidence by way of affidavit narrated the incident on the same lines as other witnesses. In his cross examination, he deposed that “Petr. had asked the respt. to prepare a cup of tea. When the respt. slapped the petr… … .”

    33. Perusal of the aforementioned testimonies reveals that the finding returned by the Trial Court with respect to the incident of 02.02.1998, is completely erroneous. There is no contradiction in the testimonies of the witnesses with respect to the presence of each of the witnesses at the time when the incident occurred. It is correct that the appellant (PW-1), PW-2 and PW-4 did not state in their respective evidence by way of affidavit, with respect to their own presence. However, in their cross examination, they all have stated that they were present at the time of incident. It cannot be appreciated how Bhim Singh Paswan (PW-4) could be construed to be a tutored and interested witness, merely because his children took coaching from the appellant. Obviously, it is acquaintances of the family, and family members who would be present in the house, and if any incident takes place, it is they who would witness the same. In Vishwanath Agrawal (supra), the Supreme Court, inter alia, observed:

  • | “39. … … At this juncture, we may unhesitatingly state
    | that the trial court as well as the first appellate court
    | have disbelieved the evidence of most of the witnesses
    | cited on behalf of the husband on the ground that they are
    | interested witnesses. In a matrimonial dispute, it would be
    | inappropriate to expect outsiders to come and depose. The
    | family members and sometimes the relatives, friends and
    | neighbours are the most natural witnesses. The veracity of
    | the testimony is to be tested on objective parameters and
    | not to be thrown overboard on the ground that the witnesses
    | are related to either of the spouse. …”
  • 34. Upon perusal of the testimony of PW-4, it is clear that the same is unimpeached. No evidence has been brought on record to show that PW- 4 was an interested witness. The respondent did not even suggest to the witness (PW-4) that he was under the control of – functionally or psychologically, or indebted to the appellant – financially, emotionally, or morally, to depose falsely in his favour. He was not obliged to depose falsely on oath for any particular reason. His testimony is corroborated that of the other witnesses, viz. PW-1, PW-2, PW-6.

    35. The said incident has been held to be “improbable” in view of the respondent already misbehaving in a similar manner. However, it was not the case of the appellant, that a similar incident had taken place earlier. The earlier incident related to the alleged injury caused to the eye of the appellant, which had been disbelieved. Even otherwise, merely because a family member may have misbehaved on an earlier occasion(s), is no reason to conclude, that such member would never be called upon to discharge the obligation that the person can reasonably be expected to discharge as a member of the family. Being the daughter-in- law and a housewife it would not have been unusual for the appellant and his family members to ask the respondent to prepare tea for a guest/ acquaintance who has visited the family.

    36. The mere omission on the part of the witnesses to mention as to who all were present at the time of the incident, cannot be treated as a contradiction. It is not that while one witness states that a particular person was present, the other witness(es) deny that position. Pertinently, in their cross-examination, none of the witnesses to the incident of 02.02.1998 were asked as to who all were present. In fact, (PW-6) – the mother of the appellant had deposed that “Apart from myself and the petitioner Bhimsen Paswan and my husband were present at that time in the house.” Thus, the finding of the learned ADJ on the incident of 02.02.1998 is patently laconic as it is premised on a misplaced approach.

    37. With respect to the incident of 10.02.1998, the Trial Court, in paragraph 30 of the judgment observed that:

  • | “30. Petitioner claimed that he had asked respondent to
    | bring glass of water. Whereas other witness claimed that
    | father of petitioner had asked respondent to bring water.
    | PW5 claimed that sister of petitioner was also present at
    | time of incident whereas none of the other witnesses
    | examined claimed so. Further petitioner stated that
    | respondent had raised hand to slap him but this is not
    | stated by any other witness who claimed to be present at
    | time incident. Therefore, there are inconsistency in the
    | testimony of witnesses on material point. Their (sic.)
    | version is also not probable and believable. Therefore,
    | petitioner has failed to prove this incident.”
  • 38. The appellant (PW-1) in his examination in chief stated that:

  • | “On 10.2.98, one Ganga Dhar had visited my house, who is my
    | cousin brother. In his presence I asked to the respdt. To
    | serve me a (sic.) glass of water, at this she humiliated me
    | by showing her hand to slap (sic.) me. She (sic.) also used
    | filthy language for myself and my parents.”
  • 39. In his cross examination, he deposed that “It is incorrect to suggest that no incident dated 10/2/98 as deposed by me in my chief examination dated 12/7/02 took place.”

    40. The father of the appellant (PW-2), in his evidence by way of affidavit stated that:

  • | “11. That again on 10.02.1998 when Sh. Gangadhar one of the
    | relative of the petitioner had visited the house of the
    | petitioner the deponent requested the respondent to bring a
    | glass of water for Mr. Gangadhar as she was around, but
    | respondent gave a very rude reply to the deponent that
    | respondent is not deponent’s servant and abused petitioner,
    | deponent and his family members in filthy language in
    | presence of Sh. Gangadhar, just in order to humiliate them.”
  • 41. In his cross examination, he deposed that:

  • | “Sh. Ganga Dhar is my wife’s sister’s son. I was present at
    | the time when Sh. Ganga Dhar visited on 10.2.98. As only I
    | had requested the respondent to get a glass of water for
    | Sh. Ganga Dhar. It is wrong to suggest that after the
    | incident of 2.2.98, I would not have asked the respondent
    | for a glass of water on 10.2.98. At the time of incident of
    | 10.2.98, besides me, petitioner was also present. It is
    | wrong to suggest that no such incident as narrated by me in
    | my affidavit happened on 10.2.98.”
  • 42. The mother of the appellant (PW-6), in her evidence by way of affidavit stated on the same lines as that of PW-2. In her cross examination, he deposed that:

  • | “I was present in my house on 10.2.98 when Sh. Gangadhar
    | visited our (sic.) house. At that time besides me, my
    | husband and my son too were present. Gangadhar is son of my
    | sister. It is correct that despite the fact we knew the
    | background and character of respondent my husband asked the
    | respondent to bring a glass of water for him. It is
    | incorrect to suggest that no such incidence as narrated by
    | me in para 12 of the affidavit had happened on 10.2.98.”
  • 43. Gangadhar (PW-5), in his evidence by way of affidavit stated that:

  • | “3. That on 10.2.1998 when the deponent visited the house
    | of the Petitioner, Petitioner’s father requested the
    | respondent to get a glass of water for the deponent but the
    | respondent gave a very rude reply to him that she is not
    | his servant and abused Petitioner and all his family
    | members in filthy language in presence of the deponent.”
  • 44. In his cross examination, he deposed that:

  • | “In the month of February 1998, date I do not remember. I
    | went to the house of my Mausaji. At the time, besides me,
    | my Mausaji, my Mausi, my sister were present in the house.
    | … … . By sister I mean my Mausi’s daughter. … … .
    | The incident which I have narrated in para 3 of my
    | affidavit took place soon after we reached the house. …
    | … . It is incorrect to suggest that no incident has
    | narrated by me in para 3 of the affidavit took place within
    | my presence … … .”
  • 45. Perusal of the aforementioned testimonies reveals that the finding returned by the Trial Court with respect to the incident of 10.02.1998, is also completely erroneous. PW-2, PW-6 and PW-5 all state that it was PW-2 who asked the respondent to bring a glass of water for PW-5. When a relative or guest visits a household, it is customary in our country to offer him/ her a glass of water to begin with, soon after the arrival. On the arrival of the guest, that is the normal reaction and expected behaviour of the host. Thus, it is not unusual that more than one of the family elders may ask for a glass of water for a guest. Thus, whether, only PW-2 asked for the glass of water, or both PW-1 and PW-2 asked for it (for the guest PW-5) is immaterial. The fact that the respondent was asked for a glass of water for the guest Gangadhar on 10.02.1998, and the respondent behaved in the manner narrated by these witnesses, stands established from the aforementioned testimonies. Gangadhar (PW-5) deposed that apart from the appellant, PW-2, and PW-6, the sister of the appellant was also present. All the other witnesses did not state with regard to the presence of the sister of the appellant. Perusal of the testimonies of PW-1, PW-2, PW-6 reveals that no question was put to the witnesses in their cross examination with respect to the presence of other family members at the time of the incident. Therefore, the same cannot be construed as a contradiction. The appellant (PW-1) had deposed that the respondent had raised her hand to slap him, and abused in filthy language. PW-2, PW-5 and PW-6 deposed that the respondent abused in filthy language when asked for a glass of water. However, they did not depose that the respondent raised her hand to slap the appellant. In my view, the same is not a contradiction, and at the highest, may be an exaggeration. No specific question was put to PW-2, PW-5 and PW-6 with respect to the respondent raising her hand to slap the appellant. They did not have the opportunity to deny or affirm the same. Therefore, the aforesaid ambiguities in the testimonies of the witnesses do not render the testimonies unreliable. In any event, even if it were to be accepted that the respondent did not raise her hand to hit the appellant, but only reacted by hurling filthy abuses and not getting the water, that by itself, constitutes a matrimonial offence.

    46. It may also be noted that the testimonies of PW-2, PW-4, PW-5 and PW-6 were recorded between 2005 to 2007, i.e. after 7-9 years of the said incidents. It is natural for certain discrepancies to occur in the testimonies of witnesses when their testimonies are recorded after a lapse of several years due to fading memories. It is also a settled position that minor discrepancies in the testimonies of witnesses, which do not strike to the root of the case, can be ignored. Reference may be made to Ramesh Chand (supra). Thus, the findings of the learned ADJ regarding the incidents of 02.02.1998 and 10.02.1998 are completely erroneous and cannot be sustained. The same are, accordingly, reversed. This Court is of the view that these matrimonial offences are sufficiently proved.

    47. In the written statement filed by the respondent, there is no mention of any specific incident of physical abuse by the appellant or his family member during her stay at the matrimonial home. It is pertinent to note that the respondent did not file any complaint with respect to alleged dowry demand or ill treatment, to any authority, during her stay at the matrimonial home.

    48. The respondent wrote a letter to the father of the appellant dated 30.08.1998 (Ex.PW-1/2). The relevant portion of the said letter is as under:

  • | “… … mera rehne ka mood nahi hai? Agar main wahan rehna
    | chahu to kisi ki himmat nahi hai ki mujhe rok de. Mere
    | rehne ke layak to aapka ghar hai bhi nahi. … … … .
    | Mein fridge lock karke aagayi toh sabko khalbali maach
    | gayi, aur choti choti baaton per jab maazi mere saaman ko
    | bhar kar room mein tala laga deti thi. Mein jab fridge mein
    | kutch rakhti thi, toh fridge off kar kitchen ki khidki ke
    | paas khiska kaar rakh diya zata tha. Mein kamre mein light,
    | fan on nahi kar sakti thi. Mere liye uss ghar mein
    | goodnight nahi tha, tab kissi ko kutch bura nahi lagta tha.
    | Haar kissi se meri shikayat karke aur mujhe badnaam karke
    | aap kya ghava aur saboot ikatha karna chahte hain? Koi
    | saath nahi dega aapka. Aapne aap ko aap zayada hoshiyaar
    | aur chalak mat samajhiye. Jab mein mooh kholungi toh jante
    | hai ki kya hoga? Dhajjiyan udd jayengi app logo ki. Apne
    | bete ka durgun aur kamzoori choopa kaar shaadi karwa diya,
    | taaki koi yeah na keh sakey ki ladka kuwara reh gaya. Abb
    | bahu ko rakhne se ghabrate hain aur bahane banate hai ki,
    | mein apke bete ko marti hu. Ek darje ke neech aadmi hain
    | aap log. Jo suntan hai wahi hasta hain… … … .
    |
    | Meri himat ki kya baat karte hai aap? Mein toh aap logo ko
    | hatkadiya bhi lagwa sakti thi. Aap yeh mat samjhiye ki aap
    | logo ki mein mohtaj hun…. … … .
    |
    | Main to sirf ek baar aapke bete ke muh se sun lena chahti
    | hun ki vo kya chahte hain? Mujhe rakhna chahte hain ya
    | nahi. Fir to mai sabko dhool chatva dungi. … … .
    |
    | Aap logon ne kabhi mujhe bahu ka darza nahi diya. Apne
    | bete ko jaanbujkar mujse dur dur rakhte the. Aap logon ki
    | chaal mai khub samajti thi. Isi baat par ghaseet dungi aap
    | logo ko. Aapka beta to apne demag se apni patni ke liye na
    | kuch soch sakta hai, na kuch kar sakta hai. Unke paas to
    | nah dil hai, nah demag hai, na mardangi. … … .
    |
    | Agar aap log aisi hi harkat karte rahe to aisi hi chitthi
    | mai apke padosi ko bhi likh sakti hun aur apke jitne jaan
    | pehchaan wale hain, jinhe mai bhi jaanti hun, unke naam se
    | bhi likhungi. .. .. . (emphasis supplied)
    |
  • 49. The trial court overlooked this letter by concluding that:

  • | “This letter if read in totality appears to be a letter
    | written under frustration”.
  • 50. A perusal of letter Ex.PW-1/2, no doubt, shows that the same was written by the respondent to the father of the appellant out of frustration. The same clearly shows that there were differences and bickering between the respondent on the one hand, and the appellant and his family members on the other hand, while the respondent was residing with the appellant at her matrimonial home. This letter also shows that the respondent was keen to restore cohabitation with the appellant.

    51. At the same time, this letter also shows that the respondent had little or no respect either for the appellant or his parents, and she did not hesitate to express her disrespect for them on their face. She did not mince her words while conveying that she holds the appellant and his family members in very low esteem. A spouse who is keen to restore the matrimonial relationship – and more so when that spouse is the female in the Indian context, cannot be reasonably expected to write a letter full of condemnation and threats to her father-in-law, of the kind Ex.PW-1/2 is. The letter Ex.PW-1/2 betrays the pent up anger and frustration of the respondent. It also shows that the respondent had revolted against the appellant and his family members. No doubt, in a given situation such a revolt by a spouse may even be justified. However, unfortunately for the respondent, she has not led any evidence to show as to what were the circumstances that she had to face, while residing with the appellant in the matrimonial home, which gave rise to the issuance of the letter Ex.PW-1/2.

    52. The kind of threats conveyed and expressions used in relation to the appellant and his father by the respondent in this communication cannot be justified, and would have caused considerable pain, agony and suffering to the appellant and vitiated the matrimonial bond between the parties. To address her father-in-law as one who considers himself “hoshiyaar aur chalak”, i.e. clever and cunning, is not done. Similarly, it is not done for a daughter-in-law to issue a threat that when she will speak, “Dhajjiyan udd jayengi app logo ki”. To call the appellant and his family members “Ek darje ke neech”, tantamount to use of highly insulting and derogatory language. She also conveyed the threat that she could even embroil the appellant and his family members in a criminal case and get them imprisoned. This is evident from her statement when she says “Mein toh aap logo ko hatkadiya bhi lagwa sakti thi”. She again repeats the threat that she would take the appellant and his family members to task, by stating “Fir to mai sabko dhool chatva dungi” and “Isi baat par ghaseet dungi aap logo ko”. The respondent clearly held the appellant in very low esteem. In relation to the appellant, she stated “Unke paas to nah dil hai, nah demag hai, na mardangi”. In fact, she challenged the manhood of the appellant.

    53. Ultimately, she even threatened to write a similar letter as Ex.PW- 1/2 to the neighbours and acquaintances of the appellant and his family members so as to run down the appellant and his family members, if they continued to conduct themselves in the same way.

    54. The communication Ex.PW-1/2, in my view, cannot be passed off as one written out of frustration and nothing more. The respondent repeatedly issued threats in this communication to the appellant and his family members, apart from insulting them and running them down. In the face of such a communication, the appellant would have been justified in entertaining a serious apprehension that it would not be safe for him to cohabit with the respondent. The said communication, i.e. Ex.PW-1/2 would have caused acute mental pain, agony and suffering to him, and the appellant could not be reasonably asked to put up with such conduct and live with the respondent. The parties lived together under one roof for a very short duration, i.e. for about four months, and within that period itself, at least two matrimonial offences (taken note of hereinabove on 02.02.1998 and 10.02.1998) occurred, which clearly stand established on record. When the letter Ex.PW-1/2 is viewed in the light of the incidents dated 02.02.1998 and 10.02.1998, in my view, what emerges is that the respondents conduct was such that the parties could not have lived peacefully and happily on a sustained basis. The conduct of the respondent would have reasonably given rise to acute mental pain, agony and suffering to the appellant and his family members on a sustained basis, and the appellant cannot reasonably be asked to put up with such conduct and live with the respondent. Pertinently, even though in her defence the respondent stated that the appellant and his family demanded dowry, there is not a whisper in the communication Ex.PW-1/2 in that respect.

    55. The allegations made by the respondent in the petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (preferred in July 2010, i.e. after the institution of the divorce petition), insofar as they are relevant, read as follows:

    | “3. That the behavior of the respondent and his family
    | members towards the petitioner was abhorrent and she was
    | taunted on account of bringing less dowry. The respondent
    | also joined hands with his parents in causing mental
    | harassment to her and he with a view to hurt the
    | petitioner’s feelings refused to perform conjugal duties.
    | The respondent at the behest of his parents used to lock
    | her up in dark room without providing any food. The
    | respondent had misappropriated the jewelary and other items
    | of the petitioner due to which the petitioner had filed the
    | complaint against the respondents and his family members
    | with CAW Cell, Nanakpura, Delhi, which ultimately resulted
    | into registration of FIR bearing No.695/99 u/s 406/498-A
    | IPC at P.S. Paschim Vihar.
    |
    | x x x x x x x x x
    |
    | 5. That in the month of July, 1998, when the petitioner
    | requested the respondent to take her to Delhi, the
    | respondent told her not to come back and also stated that
    | if the petitioner wants to come back, she will have to
    | bring Rs.50,000/- as demanded by his father. Instead of
    | taking her back to matrimonial house, the respondent had
    | filed a false and frivolous divorce case against the
    | petitioner which was ultimately dismissed on merits.”
    | (emphasis supplied)

    56. As noticed above, the respondent let the said proceedings be dismissed for want of prosecution. She did not make good the aforesaid allegations against the appellant, and his family members. A party, who makes serious allegations in legal proceedings against the opposite party, and drags the opposite party to face such legal proceedings, must take responsibility for the same and such a party cannot be permitted to walk away by subsequently allowing the proceedings to be dismissed in default, or for want of prosecution. No party can be permitted to abuse the process of law by filing proceedings on the basis of allegations, to establish which, no effort has been made when the time comes. The implication of such conduct of the respondent is that the allegations, when made, were known to the respondent to be concocted, and were made to harass the appellant and exploit the provisions of law. When she made the allegations and dragged the appellant to Court (as threatened by her in Ex PW1/2), she must have been conscious about the pain, agony and suffering to which the appellant would be subjected.

    57. Thus, I am of the view that the aforesaid proceedings under the Protection of Women from Domestic Violence Act, 2005 was a contrived afterthought, and was completely “ill advised”. The same was a false complaint filed by the respondent-wife knowingly and intentionally calculated to embarass the appellant and his family members. The filing of such a false and frivolous complaint tantamount to causing mental cruelty to the appellant and putting him in fear of his well being, if he restored conjugal relationship with the respondent.

    58. It is well-settled that filling of false criminal complaints against a spouse amounts to cruelty as postulated in section 13(1)(ia) of HMA. Reference can be made to the case of K. Srinivas v. K. Sunita, (2014) 16 SCC 34, wherein the court has observed as follows:

    | “4. In the case in hand, the learned counsel for the
    | respondent wife has vehemently contended that it is not
    | possible to label the wife’s criminal complaint detailed
    | above as a false or vindictive action. In other words, the
    | acquittal of the appellant and his family members in the
    | criminal complaint does not by itself, automatically and
    | justifiably lead to the conclusion that the complaint was
    | false; that only one complaint was preferred by the
    | respondent wife, whereas in contradiction, in K. Srinivas
    | Rao a series of complaints by the wife had been preferred.
    | The argument was premised on the averment that the
    | investigation may have been faulty or the prosecution may
    | have been so careless as to lead to the acquittal, but the
    | acquittal would not always indicate that the complainant
    | had intentionally filed a false case. What should be kept
    | in perspective, it is reasonably, that the complainant is
    | not the controlling conductor in this orchestra, but only
    | one of the musicians who must deliver her rendition as and
    | when she is called upon to do. Secondly, according to the
    | learned counsel, the position would have been appreciably
    | different if a specific finding regarding the falsity of
    | the criminal complaint was returned, or if the complaint or
    | a witness on her behalf had committed perjury or had
    | recorded a contradictory or incredible testimony. The
    | learned counsel for the respondent wife states that neither
    | possibility has manifested itself here and, therefore, it
    | would be unfair to respondent wife to conclude that she had
    | exhibited such cruelty towards the appellant and her in-
    | laws that would justify the dissolution of her marriage.
    |
    | 5. The respondent wife has admitted in her cross-
    | examination that she did not mention all the incidents on
    | which her complaint is predicated in her statement under
    | Section 161 CrPC. It is not her case that she had actually
    | narrated all these facts to the investigating officer, but
    | that he had neglected to mention them. This, it seems to
    | us, is clearly indicative of the fact that the criminal
    | complaint was a contrived afterthought. We affirm the view
    | of the High Court that the criminal complaint was “ill
    | advised”. Adding thereto is the factor that the High Court
    | had been informed of the acquittal of the appellant husband
    | and members of his family. In these circumstances, the High
    | Court ought to have concluded that the respondent wife
    | knowingly and intentionally filed a false complaint,
    | calculated to embarrass and incarcerate the appellant and
    | seven members of his family and that such conduct
    | unquestionably constitutes cruelty as postulated in Section
    | 13(1)(ia) of the Hindu Marriage Act.
    |
    | 6. Another argument which has been articulated on behalf
    | of the learned counsel for the respondent is that the
    | filling of criminal complaint has not been pleaded in the
    | petition itself. As we see it, the criminal complaint was
    | filed by the wife after filling of the husband’s divorce
    | petition, and being subsequent events could be looked into
    | by the court. In any event, both the parties were fully
    | aware of this facet of cruelty which was allegedly suffered
    | by the husband. When evidence was led, as also when
    | arguments were addressed, objection had not been raised on
    | behalf of the respondent wife that this aspect of cruelty
    | was beyond the pleadings. We are, therefore, not impressed
    | by this argument raised on her behalf.
    |
    | 7. In these circumstance, we find that the appeal is well
    | founded and deserves to be allowed. We unequivocally find
    | that the respondent wife had filed a false criminal
    | complaint, and even one such complaint is sufficient to
    | constitute matrimonial cruelty.” (emphasis supplied)

    59. Though the proceedings under the Domestic Violence Act, 2005 are not criminal proceedings, in my view, the principle laid down by the Supreme Court in K. Srinivas (supra) is equally applicable to such proceedings. What is relevant is that the appellant was subjected to legal proceedings on the basis of false and unsubstantiated allegations, which would have caused embarrassment to the appellant and his family members.

    60. In view of the aforesaid discussion, I am of the view that the respondent has treated the appellant with cruelty entitling him to a decree of divorce under Section 13(1)(ia) of the HMA. Accordingly, the appeal is allowed and the marriage between the parties stands dissolved. Parties to bear their own costs.

    VIPIN SANGHI, J

    MAY 23, 2016

wife dead, 5 of family behind bars for 2 years. they seek narcoanalysis test on themselves to prove their innocence!! 

Marriage is a gamble. Marriage is such a terrible gamble , that you’re not only gambling with your own life,your own money, your sanity and well being, in many cases you’re also gambling with the lives of your near and dear ones. 
In this case because a young woman is dead, five members of the husband’s family have been arrested. Not only have they been arrested, they are behind bars for almost 2 years now…!!! God only knows, how long they will be kept locked up, without their case even being completely tried.

They tried seeking permission for narcoanalysis test to prove that innocence. The lower Court even projected that. Now they have to move to high court to somehow get the permission to test themselves to prove their own innocence…

What a pathetic state of affairs

+++++ news from TOI +++++

To prove innocence, an entire family to undergo narco-analysis

TNN | 17 mins ago


(Representative Image)

Ahmedabad: Seeking to establish their innocence, five members of a family have sought narco-analysis. The Gujarat high court recently granted the family members’ plea for narco-analysis at the Forensic Science Laboratory. The applicants who have been charged of domestic violence and murder of daughter-in-law, want to prove their innocence.

All five member of the family have claimed alibi that they were not at home in Sardarnagar when Preeti Vanjani died on May 10, 2014. When police investigators did not accept their claims and put them behind bars, they sought further probe.

The trial court rejected their appeal for further investigation and narco-analysis test. However, Justice GB Shah of the high court has allowed them to undergo the test. The court has also directed the investigating officer to submit the test report to the trial court.

In this case, Vinod Vanjani, his mother Ashaben, brother Gulab, sister Soniben and her husband Ghanshyam Mangtani are in jail for allegedly killing Preeti. They approached the trial court for further probe on various counts including performing the truth-serum test so that they could probe how they were not at home when Preeti allegedly committed suicide. The trial court turned down their plea on the ground that the accused do not have any right to intervene in the course of investigation and that the burden of proving alibi lies on the accused and they cannot shift it on to the investigating officer. The trial court ruled that the accused persons can place their evidence at the stage of trial and also that the finding of narco analysis test are not evidence in itself.

The family then moved the high court, where their advocate SK Bagga referred to the Supreme Court’s order in Dr Purushottam Soni’s case, who sought brain mapping test on himself to prove his innocence. The HC modified the lower court’s order by ruling that narco-analysis test is always meant to aid police investigation.

Family’s plea based on Dr Soni case

Dr Purushottam Soni was implicated in the murder of his wife Dr Shiela Soni. He claimed that he was falsely implicated to save a minister. To prove his innocence, he approached the Supreme Court in 2010 with a plea to have the brain fingerprinting test conducted on him. The SC said that he should be permitted to give evidence in any form – whether it be in the form of oral deposition before court or in the form of scientific nature like that of brain mapping test. To deprive him of such a right would tantamount to violation of his fundamental rights. When the trial took place the court had acquitted Soni.

 

Maintenance granted 30+ years after divorce! though husband remarried long ago!, MP HC

In India life long maintenance is the norm. There are so many cases where women have come back to claim the moollah after divorce. However this one takes the case, in that woman seeks maintenance approx 30 years after divorce  and wins that too !!

  • In addition to other objections, The husband’s counsel argues that “…submitted that divorce decree was passed on 21.09.1978 and for about 30 years no objection for maintenance was filed by the respondent and after lapse of 30 years, this petition has been filed on 05.01.2009, …”
  • However the honourable court opines that “…… So far as this objection as per provision of the Section 25 of Act 1955 “any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto” respondent has right to file application for permanent alimony and maintenance and there is no specific limitation provided for filing such petition under Section 25 of Act 1955. ….”
  • and “…it is admitted fact that in the year 2007, application for granting the maintenance under Section 125 of the Cr.P.C., 1973 has been filed by the respondent and in that application appellant was agreed to pay Rs.3,000/- per month as a maintenance to the respondent and at that time also no such objection was raised and after passing that order on 02.07.2008 immediately on 05.01.2009, this petition has been filed under Section 25 of Act 1955 therefore, this submission of the learned counsel for the appellant also having no force and is rejected….”
  • and the honourable court goes on to decide that “…So far as awarding the Rs.15,000/- per month as permanent alimony and maintenance, it is also not excessive or exorbitant looking to the status of the appellant as he was being posted and retired from Principal Secretary Water Resources Department, M.P. Government. He is earning more than Rs.43,000/- per month. He is having one house in Indore. His second wife is a Doctor and she is also in service and getting salary, ….”*****

    HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT JABALPUR

    FIRST APPEAL No.168/2013

    SUNIL KUMAR VERMA

    Versus

    SMT. KAMALA BAI

    Present:
    Hon’ble Shri Justice Rajendra Menon

    Hon’ble Shri Justice Sushil Kumar Gupta

    Shri R.P. Agrawal, learned Senior Counsel with Shri Vivek Rusia, learned counsel for the appellant.

    Shri Shobhitaditya, learned counsel for the respondent.

    Whether approved for reporting- Yes

    JUDGMENT

    ( 17/07/2015)

    Per: Sushil Kumar Gupta, J.

  1. This appeal under Section 28 of The Hindu Marriage Act, 1955 (in short ‘Act 1955’) arises out of the judgment and decree passed by the IInd Additional Principal Judge of Family Court, Bhopal in RCS No.599-A/2008, whereby the appellant has been directed to pay amount of Rs.15,000/- per month as maintenance to the respondent.
  2. It is undisputed fact that the appellant got married with respondent before 55 years. It is also undisputed that appellant was retired from the post of Principal Secretary Water Resources Department. It is also undisputed that appellant and respondent lived as husband-wife about 20 years and out of their wedlock respondent blessed with two daughters. It is also undisputed that appellant filed a Civil Suit No.35-A/1978 for divorce under Section 13 of Act 1955 against respondent and vide order dated 21.08.1978, Court of Additional District Judge, Bhopal has granted the decree of divorce in favour of appellant. It is also undisputed that appellant got re-married with Dr. Indra Sharma. It is also undisputed that both the parties are living separately. It is also undisputed that in favour of the respondent Chief Judicial Magistrate has granted maintenance Rs.3,000/- per month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. Apart from the aforesaid undisputed facts the brief facts of the case are that respondent has filed an application under Section 25 of Act 1955 before the Family Court Bhopal claiming maintenance of Rs.3.00 lacs per year from the appellant on the ground that appellant is a man of crores and he has got Rs.26,000/- per month from the pension and he has also possessed 90-92 bighas agriculture land by which he is earning 10-15 lacs per-annum. It is also pleaded that appellant also having a big house in Indore by which he is earning Rs.35,000/- per month as a rent. It is also stated that appellant also lend the money on interest. It is also stated that appellant is having many luxury vehicles and his second wife is in service. It is also stated that respondent is receiving only Rs.3,000/- per month which is not sufficient for her maintenance. She is not having any means for earning therefore she prays for grant of Rs.3 lacs per year as a maintenance.
  4. Besides the admissions as aforesaid in P. No.2, appellant, in reply, refuted the pleadings of the respondent and pleaded that with malafide intention, within a year, the respondent has filed this application under Section 25 of Act 1955. Appellant also stated that with the consent of both parties he is already paying maintenance of Rs.3,000/- to the respondent by virtue of order dated 20.07.2007 passed by the competent Court. It is also stated by the appellant that at the time of divorce respondent was given 8.2 Hectare (32 Bigha) agriculture land from the ancestral property of appellant and by way of cultivation she is already earning Rs.3.00 lacs per year. It is also stated that he is getting only Rs.20,000/- as a pension and Rs.11,000/- as a rental income. Accordingly, on these grounds he prayed for dismissal of the petition.
  5. In support of her application respondent, besides herself, examined Lalit Sustani (PW-2) and Smt. Pramila Singh (PW-3) and in defence the appellant examined himself.
  6. After appreciating and marshaling of evidence, learned trial Court allowed the petition of the respondent and passed the impugned order as stated in para No.1.
  7. Learned counsel for the appellant challenging the impugned judgment and decree on the ground that learned Family Court has committed jurisdictional error while entertaining the application under Section 25 of Act 1955. That the respondent is residing in Gram Sustani Pargana District- Rajgarh and deliberately described herself resident of Bhopal and filed the application before the Family Court at Bhopal. Neither the appellant nor the respondent are residing at Bhopal therefore, the Family Court Bhopal has no territorial jurisdiction to decide the petition. It is further submitted that the respondent is already getting maintenance of Rs.3,000/- per month from the appellant in compliance of consent order passed by the Chief Judicial Magistrate, Rajgarh and in compliance of that order, appellant is already paying maintenance of Rs.3,000/- per month to the respondent. It is also submitted that learned trial Court did not consider this fact that respondent is already owner of agriculture land measuring 8.2 Hectare in Gram Sustani and earning Rs.3.00 lacs per year by way of cultivation. It is also submitted that appellant is a retired Government Servant and he is getting Rs.32,000/- per month by way of pension which is also insufficient for himself. It is further submitted that learned Family Court has directed to pay Rs.15,000/- per month out of Rs.32,000/- which is highly excessive and disproportionate earning of appellant.
  8. Per contra, learned counsel for the respondent opposes the submissions advanced by the learned counsel for the appellant and submitted that impugned order passed by the learned trial Court are based on proper appreciation and marshaling of evidence and does not require any interference and he prayed for dismissal of appeal.
  9. Having heard and considered the arguments advanced by the learned counsel for the parties and perused the entire record minutely.
  10. Before coming to the factual aspect of this case, we would like to reproduce the relevant provision of Act 1955.
    • “25. Permanent alimony and maintenance.:-
      • (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant [the conduct of the parties and other circumstances of the case] it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
      • (2) ***********
      • (3) *********** ” 
    • [19. Court to which petition shall be presented.–
      • Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction–
      • (i) the marriage was solemnized, or
      • (ii) the respondent, at the time of the presentation of the petition, resides, or 
      • (iii) the parties to the marriage last resided together, or
      • [(iii-a) in case the wife, is the petitioner, where she is residing on the date of presentation of the petition, or] 
      • (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]
  11. The first contention raised by the learned counsel, appearing for the appellant, is that learned Family Court has committed jurisdictional error while entertaining the application under Section 25 of Act 1955. He submitted that respondent is residing in Gram Sustani, District-Rajgarh and this petition has been filed in Bhopal describing herself resident of 25, Betwa Apartment, Bhopal. He further submitted that neither the appellant nor the respondent are residing at Bhopal therefore, Family Court Bhopal have no territorial jurisdiction to decide the petition.
  12. So far as the territorial jurisdiction of Family Court Bhopal entertaining application under Section 25 of Act 1955 of the respondent. Firstly it is pertinent to mention here that no such objection was taken by the appellant, before the lower Court, in his written statement. In reply appellant has not raised any objection that respondent is not living on the given address 25, Betwa Apartment, Bhopal. In para No.12 of petition respondent specifically pleaded about jurisdiction of Family Court Bhopal and stated that appellant has got decree of divorce from Ist Additional District & Sessions Judge, Bhopal in Civil Suit No.35-A/1978 by dated 21.08.1978 therefore, this Court has territorial jurisdiction to here this petition but in reply of this para No.12 no objection has been raised by the appellant about territorial jurisdiction and this objection has been raised first time in appeal before this Court.
  13. Despite this fact that this objection has been raised first time in this Court, even though keeping in view the provisions of Section 25 of Act 1955, Family Court Bhopal has territorial jurisdiction to hear the petition of respondent under Section 25 of Act 1955.
  14. Section 25 of Act 1955 clearly provided that “any Court exercising jurisdiction under this Act, at the time of passing any decree or at any time subsequent thereto” that clearly shows that Family Court Bhopal having territorial jurisdiction to entertain the petition under Section 25 of Act 1955 because appellant has filed divorce petition against respondent before the Ist Additional Sessions Judge, Bhopal showing her address at Bhopal and decree of divorce has been granted in his favour and at that time no order was passed in favour of respondent for permanent alimony and maintenance, therefore, keeping in view the provision under Section 25 of Act 1955 where under Section 13 of Act 1955 that petition has been filed in Bhopal Court therefore, respondent has every right and having jurisdiction to file petition under Section 25 of Act 1955 at Bhopal. Therefore, Bhopal Court has jurisdiction to entertain the petition of the respondent. Therefore the objection raised by the learned counsel for the appellant about the territorial jurisdiction has no substance.
  15. The second contention made by the learned counsel, appearing for the appellant, is that there is huge delay in filing the present petition under Section 25 of Act 1955 therefore, is not maintainable. He further submitted that divorce decree was passed on 21.09.1978 and for about 30 years no objection for maintenance was filed by the respondent and after lapse of 30 years, this petition has been filed on 05.01.2009, therefore is not maintainable.
  16. So far as this objection as per provision of the Section 25 of Act 1955 “any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto” respondent has right to file application for permanent alimony and maintenance and there is no specific limitation provided for filing such petition under Section 25 of Act 1955. So far as the delay in filing of this petition it is admitted fact that in the year 2007, application for granting the maintenance under Section 125 of the Cr.P.C., 1973 has been filed by the respondent and in that application appellant was agreed to pay Rs.3,000/- per month as a maintenance to the respondent and at that time also no such objection was raised and after passing that order on 02.07.2008 immediately on 05.01.2009, this petition has been filed under Section 25 of Act 1955 therefore, this submission of the learned counsel for the appellant also having no force and is rejected.
  17. The third contention made by the learned counsel for the appellant is that no positive evidence is produced by respondent to show the income of appellant. He further submitted that at present appellant is getting only Rs.32,000/- monthly as a pension, Rs.7,500/- per month as a rent of Indore house and Rs.2,900/- per month out of the earning of agriculture and out of which he has to pay income tax expenditure, agriculture operation and maintenance of house of Indore. In the addition, learned counsel for the appellant also submitted that in such a way appellant’s monthly income comes to 22 to 26 thousands but learned trial Court wrongly recorded the finding in para No.16 of the judgment is Rs.43,000/- per month. This finding is based on misreading of evidence and liable to be set aside. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  18. Appellant Sunil Kumar Verma (non-appellant No.1) admitted in para No.16 of cross-examination that he is having 18 hectare (about 72 Bigha) of agriculture land. In para No.21 of the cross-examination he again admitted that he is getting Rs.11,000/- rental income from his house. He has also admitted in para No.10 that he is getting Rs.32,000/- as a pension therefore, it indicates that appellant getting Rs.32,000/- pension, Rs.11,000/- per month rental income total income is Rs.43,000/- per month. Though appellant stated in para No.10 of his examination-in-chief that he is having 3.5 bigha agriculture land by which he is getting Rs.35,000/- per year agriculture income but keeping in view the admission in para no.16 of the cross- examination of the appellant he is having 18 hectare (about 72 bigha) agriculture land, certainly he is earning lacs of the rupees from the agriculture land, therefore, it is amply proved by the evidence of the appellant that he is having income more than Rs.50,000/- per month and learned trial Court has not committed any error in giving the finding that appellant is earning Rs.43,000/- per month. Therefore, it is found proved that appellant is having sufficient means to pay the permanent alimony and maintenance to the respondent.
  19. So far as the another contention has been raised by the appellant that the respondent having sufficient means to maintain herself, therefore she is no entitled for any maintenance.
  20. So far as this submission made by learned counsel for the appellant, it is not required for the respondent to prove this fact that she is unable to maintain herself Under Section 25 of Act 1955, it is not requirement of the law in aforesaid provisions that if the wife having sufficient means and able to maintain herself, she cannot get the permanent alimony and maintenance.
  21. Relevant part of the provisions of Section 25 of Act 1955 and provisions of Section 125 of the Code of Criminal Procedure, 1973 (in short ‘Code 1973’) have some difference and reads as under:-
    • “Section 25. Permanent alimony and maintenance:-
      • (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto…..
      • (2) *********
      • (3) *********
    • Section 125. Order for maintenance of wives, children and parents :-
      • (1) If any person having sufficient means neglects or refuses to maintain-
      • (a) his wife, unable to maintain herself, or
      • (b) *********
      • (c) *********
      • (d) ********* .”
  22. However, under Section 25 of Act 1955 order for permanent alimony and maintenance is passed while exercising jurisdiction under Act, 1955 at the time of passing any decree or at any time subsequent thereto, but under Section 125 of the Code 1973 an application for maintenance can be filed independently at any time when a person having sufficient means neglects are refuses to maintain, his wife “unable to maintain herself” thereby means if wife able to maintain herself is not entitled for maintenance under Section 125 of the Code 1973, but under Section 25 of Act 1955 there is no such requirement of law.
  23. So far as awarding the Rs.15,000/- per month as permanent alimony and maintenance, it is also not excessive or exorbitant looking to the status of the appellant as he was being posted and retired from Principal Secretary Water Resources Department, M.P. Government. He is earning more than Rs.43,000/- per month. He is having one house in Indore. His second wife is a Doctor and she is also in service and getting salary, therefore appellant having no liability and responsibility.
  24. Hon’ble Apex Court in the case of Vinny Parmvir Parmar Vs. Parmvir Parmar (2011) 13 SCC 112 that “As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent’s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband.”
  25. On the aforesaid discussion, we are of the considered opinion that learned trial Court has not committed any error in passing the decree of permanent alimony and maintenance against the appellant, therefore, we are not inclined to interfere in the impugned order passed by the learned Family Court, hence this appeal sans merit and liable to be dismissed, therefore, this appeal is hereby dismissed.

There is no order as to costs.

(Rajendra Menon)                 (Sushil Kumar Gupta)
Judge                                    Judge

Ajay/-

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