498a Dv 125 wife torments sisters in laws & drives one out ! Husband wins divorce @ P&H HC. 16 years of misery ends !!

• Married in 2000, the wife is sick for a long time with husband meeting all medical expenses
• She leaves matrimonial home circa 2002 and never returns
• In spite of husband calling her back many times she refuses. Finally goes on to file false 498a against the husband “…. Ultimately she got registered FIR No.163 of 2002 under Sections 498-A/406 IPC against the husband and his family members. She also filed petition under Section 125 Cr.P.C against the husband….” in which case the husband and others are acquitted “…competent criminal Court in the trial arising out of FIR No.163 dated 08.09.2002, registered under Sections 406/198- A/323/34 IPC, at Police Station Julana. Accused Chattar Singh, Dhanno and Naveen were acquitted by the criminal Court vide judgment dated 14.07.2009. Chattar Singh and Dhanno are the parents of Naveen (husband). The criminal Court while acquitting the accused in the aforesaid case recorded the findings that admittedly there was no medical evidence to support the version of the prosecution witnesses regarding beatings and unconscious breathlessness of the victim for 3-4 days. The complainant herself admitted that she came to the parental house along with her daughter of her own and in these circumstances, no fault could be attributed to the accused persons….”
• Even during her stay she is so cruel to her husband and her sister’s in law (bhabi) that she drives out one of her bhabis and victimizes another bhabi !! “…Respondent-Husband further alleged that the attitude of the wife was so cruel that she also made life of her Bhabi namely Gayatri Devi wife of Devender Singh a hell in her house and thereafter the wife along with her family members turned out Gayatri Devi from her matrimonial house in village Julana. Gayatri Devi also moved an application against the appellant- wife in Mahila Police Station. The wife along with her family members harassed and humiliated the second wife of Devender namely Kavita, who also left the house and lodged the complaint under Sections 406/498-A IPC against the appellant-wife and her family members. Appellant-wife played active role in the occurrence where Kavita was victimized. With these allegations the original petition came to be filed…“
• finally husband wins divorce at family court in 2006. Wife goes on appeal and that drags on for a decade
• at the HC the wife’s counsel argues that the words ‘benefit of doubt’ is used in the husband’s 498a acquittal and so his acquittal is not on merits and so he should NOT be granted divorce
• The Hon P & HC appreciates the facts, and dismisses the wife’s appeal, thereby confirming husband’s divorce !! “….[20]. The words ‘benefit of doubt’ cannot be appreciated in the manner as sought to be projected by the learned counsel for the appellant. The acquittal was on merits as there was no incriminating evidence available on record, therefore, use of words like ‘benefit of doubt’ was the result of standard practice in the trial courts and was simply a misnomer. The entrustment of dowry was not proved. Guilt of the accused could not be brought to the hilt. The order of acquittal recorded by the criminal Court was upheld by the First Appellate Court in appeal as well……”
• Additionally the Honourable court also confirms an important dictum that “…. The parties were living separately from 10.02.2002. The decree was granted on 01.03.2006 during pendency of the criminal case. The acquittal recorded during pendency of the appeal can be taken into consideration by way of judicial notice...” and so considers the acquittal in 498a case as valid grounds for divorce

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-M No.65-M of 2006 (O&M)

Date of Decision: 31.05.2016

Smt. Mukesh ……Appellant

Vs

Naveen Kumar …..Respondent

CORAM:

HON’BLE MR. JUSTICE M. JEYAPAUL

HON’BLE MR. JUSTICE RAJ MOHAN SINGH

Present:Mr. Ashok Aggarwal, Advocate for the appellant.

Mr. C.B. Goel, Advocate for the respondent.

RAJ MOHAN SINGH, J.

[1]. Appellant-wife being respondent in the original petition filed before the Additional District Judge, Sonepat suffered the contested decree under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’), dissolving the marriage amongst the parties by decree of divorce on the ground of cruelty and desertion. She has ventured to file the present appeal against the said judgment and decree dated 01.03.2006.

[2]. Brief facts as gathered from the record are that the respondent-husband filed petition under Section 13 of the Act against the appellant-wife on the averment that the marriage among the parties was solemnized on 07.11.2000 according to Hindu rites and ceremonies. The wife started living with the husband as his legally wedded wife. Marriage was consummated and one female child took birth out of this wedlock on 30.08.2001, who was living with the appellant-wife. The marriage was simple and dowry-less. Respondent-husband attributed allegations of arrogance and hostile behavior of the appellant-wife towards him and his family members. Husband also alleged that the wife was short tempered and used to pick quarrels on trivial issues. She remained ill from the very first day of the marriage and was provided medical attention till the date of delivery. She was treated in Kuldeep Nursing and Maternity Home, Gohana on 14.12.2000 and her treatment continued till 30.06.2001. Ultimately child took birth on 30.08.2001 in PGIMS, Rohtak. The entire expenses were borne by the husband. She was again checked up in the Hospital and CT scan was also got conducted.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

[3]. It was further alleged by the respondent-husband that he treated the appellant-wife with all love and affection, but inspite of that her behaviour never changed towards him and his family members. After the birth of the child, the wife started leaving the matrimonial house without prior consent of the husband and his family members. The persuasion of the husband became futile. Husband was unemployed and was having no source of income. The wife was in the habit of extending taunts and also pressurised respondent-husband to settle at her parental house at Julana with her brother, who was employed in Health department.

[4]. Respondent-Husband further alleged that on 10.02.2002, the wife along with minor daughter left the matrimonial house. The respondent-husband and his family members kept on searching her and they went to the parental house where both of them were present. She was reluctant to come to the matrimonial house and gave threat to the husband and his family members for implicating them in false criminal case. Ultimately she got registered FIR No.163 of 2002 under Sections 498-A/406 IPC against the husband and his family members. She also filed petition under Section 125 Cr.P.C against the husband. Wife was an educated lady whereas the husband was unemployed, who was in search of job. Husband was fully dependent upon the income of his parents.

[5]. Respondent-Husband further alleged that the attitude of the wife was so cruel that she also made life of her Bhabi namely Gayatri Devi wife of Devender Singh a hell in her house and thereafter the wife along with her family members turned out Gayatri Devi from her matrimonial house in village Julana. Gayatri Devi also moved an application against the appellant- wife in Mahila Police Station. The wife along with her family members harassed and humiliated the second wife of Devender namely Kavita, who also left the house and lodged the complaint under Sections 406/498-A IPC against the appellant-wife and her family members. Appellant-wife played active role in the occurrence where Kavita was victimized. With these allegations the original petition came to be filed.

[6]. Appellant-wife being respondent in the original petition contested the case by filing written statement. All the allegations were denied. Filing of criminal case was admitted. Source of income available with the husband was asserted. Filing of petition under Section 125 Cr.P.C., was also admitted. The story viz-a-viz. wives of Devender Singh namely Gayatri Devi and Kavita was denied and appellant-wife claimed that she never participated in those episodes. No Panchayat was ever convened. She showed her willingness to join the matrimonial house with the respondent-husband, provided that he changes his rude behaviour. The filing of the petition was claimed to be a devise to avoid payment of maintenance.

[7]. Both the parties went to the trial on the following issues:- “1. Whether the petitioner is entitled for a decree of divorce on the grounds mentioned in the petition, as alleged? OPP  2. Relief.”

[8]. Both the parties led their respective evidence to prove their case.

[9]. After leading evidence, trial Court appreciated the material on record and accepted the petition vide judgment and decree dated 01.03.2006. That is how the present appeal came to filed by the appellant-wife.

[10]. We have heard learned counsel for both the sides.

[11]. During pendency of the appeal civil misc. No.7308-CII of 2014 was filed by the respondent-husband seeking to adduce additional evidence in the form of Annexures P-1 to P-4, which are nothing but the orders passed by the concerned Courts from time to time. In order to properly appreciate the controversy, the said application is allowed and the accompanying documents are taken on record as additional evidence for deciding controversy effectively and appropriately between the parties.

[12]. With the pleadings and evidence on record, whether the instances of cruelty and desertion as alleged are made out or not became inconsequential in view of the development which took place later on for which this Court is always competent to take judicial notice. More particularly, as per information submitted by the respondent by moving application under Order 41 Rule 27 read with Section 151 CPC, it is a settled principle of law that the Court is always competent to take notice of subsequent events for effective adjudication of the controversy between the parties.

[13]. Annexure P-1 as adduced along with the said application for additional evidence is the decision rendered by the competent criminal Court in the trial arising out of FIR No.163 dated 08.09.2002, registered under Sections 406/198- A/323/34 IPC, at Police Station Julana. Accused Chattar Singh, Dhanno and Naveen were acquitted by the criminal Court vide judgment dated 14.07.2009. Chattar Singh and Dhanno are the parents of Naveen (husband). The criminal Court while acquitting the accused in the aforesaid case recorded the findings that admittedly there was no medical evidence to support the version of the prosecution witnesses regarding beatings and unconscious breathlessness of the victim for 3-4 days. The complainant herself admitted that she came to the parental house along with her daughter of her own and in these circumstances, no fault could be attributed to the accused persons. The criminal Court also found that the accused had faced the allegations twice and it was doubted whether family of the complainant was using the method of filing complaint for grabbing the money from the accused persons and that is why the complainant already tried to involve as much relatives of the husband as they wanted. As regards offence under Section 406 IPC, the prosecution relied upon the version of complainant Mukesh and her mother whereas both the versions were found to be different. Entrustment of the dowry articles to any of the accused was not proved.

[14]. The submission of the learned counsel for the appellant-wife that the articles were lying in the police station from where the same were not claimed by the complainant was a misnomer only in view of the positive findings recorded by the criminal Court that entrustment of the dowry articles was not proved with the accused. The criminal Court while disbelieving the prosecution story ultimately held that the offence whatsoever against the accused was not proved by the prosecution and the court felt no doubt to acquit the accused persons by extending benefit of doubt in their favour. The words used as ‘benefit of doubt’ by the criminal Court were the standard observations of the court and was a misnomer, otherwise the evidence on record before the criminal Court was sufficient to discard the prosecution story to the hilt.

[15]. Counsel for the respondent-husband also relied upon Annexure P-2 the orders passed under Section 12 of the Protection of Women from Domestic Violence Act, 2005, wherein the complaint filed under Section 12 of the aforesaid Act was held not maintainable though that order is of not much significance so far as the controversy involved in the present case is concerned.

[16]. Annexure P-3 is also an order passed by the competent Court under Section 125 Cr.P.C. for grant of maintenance in favour of wife. The petition was disposed of on the basis of consensus arrived at between the parties and, therefore, this order is also of no significance in the present context.

[17]. Annexure P-4 is the judgment rendered by the Court of Additional Sessions Judge, Jind in appeal, against the judgment of acquittal dated 14.07.2009 recorded by the Judicial Magistrate, Jind, which was challenged by the State and the same was dismissed vide judgment dated 06.04.2011.

[18]. The parties were living separately from 10.02.2002. The decree was granted on 01.03.2006 during pendency of the criminal case. The acquittal recorded during pendency of the appeal can be taken into consideration by way of judicial notice.

[19]. In the light of aforesaid facts the judgments cited by the learned counsel for the appellant Radha Rani vs. Har Bhagwan, 2005 (1) RCR (Civil) 508 and (Smt). Asha Gupta alias Anju Gupta vs. Rajiv Kumar Gupta, 2005 (1) RCR (Civil) 663 do not advance the case of the appellant in any manner. Case laws cited by the learned counsel for the appellant are on different premise and are of no help to the appellant-wife. After acquittal of the husband in criminal case, ground of cruelty came to the fold of the respondent-husband, who can effectively put up this ground to allege cruelty and to seek divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

[20]. The words ‘benefit of doubt’ cannot be appreciated in the manner as sought to be projected by the learned counsel for the appellant. The acquittal was on merits as there was no incriminating evidence available on record, therefore, use of words like ‘benefit of doubt’ was the result of standard practice in the trial courts and was simply a misnomer. The entrustment of dowry was not proved. Guilt of the accused could not be brought to the hilt. The order of acquittal recorded by the criminal Court was upheld by the First Appellate Court in appeal as well.

[21]. In view of aforesaid, this Court does not find any worth in the appeal filed by the wife and the same is accordingly dismissed.

(RAJ MOHAN SINGH)                             (M. JEYAPAUL)
JUDGE                                               JUDGE

May 31, 2016

Atik

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting

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Filing false cases, physical attacks all constitute cruelty. 30 years of pure misery ends with Divorce ! Raj HC

Marriage in 1979 (Yes 37 years ago !!). Wife leaves husband in 1983. there is very little cohabitation since then, almost nil cohabitation since 1986 ! There are numerous instances of wife beating or quarreling with the husband, wife’s relatives misbehaving with husband’s parents, wife’s people trying to destroy husband’s father’s wheat crop, and a false 498a where husband and co are completely acquitted. However since the first divorce attempt by the husband goes un successfull, husband goes to SC, who sends case back to Raj HC. At Raj HC Abala Nari wife claims that she is ready to come back !! Still Raj HC appreciates the facts and grants the husband divorce on grounds of cruelty !

The Hon court concludes that “…In the instant case in our view there are several complaints against the respondent who took law into her hands, tried to beat the appellant and his family members not only once but on other occasions as well and created commotion even outside the factory gate with the appellant, coupled with filing of cases u/sec. 498-A and other facts clearly lead to irresistible conclusion that cruelty was certainly caused by the respondent against the appellant husband both mental as well as physical. ….”

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Misc. Appeal No.244/1993

Nathulal  v.  Nathi Bai

Judgment reserved on                        5.4.2016
Judgment pronounced on                        31.5.2016

Hon’ble Mr. Justice Ajay Rastogi
Hon’ble Mr. Justice J.K. Ranka

Mr. Ravi Kasliwal, counsel for appellant
Mr. Suresh Pareek, Sr. Counsel, assisted by Mr. N.C. Sharma, counsel for respondent

By the Court (per Ranka, J.)

1. This appeal is directed against the judgment & decree dated 24.2.1993 passed by the Family Court, Kota, by which application filed by the appellant u/sec. 13 of the Hindu Marriage Act, 1955 (for short the Act 1955), has been rejected with cost of Rs.1000/-.
2. This case has a chequered history of litigation.
3. The husband, Nathulal filed a divorce petition u/sec. 13 of the Act 1955, which was registered as Civil Misc. Case No.183/1991, and the same came to be dismissed by the Family Court. Appeal against the said judgment and order on an earlier occasion came to be decided by Division Bench of this Court vide order dated 1.3.1997, by which Coordinate Bench of this Court allowed the appeal and set aside the judgment and decree of the Family Court and granted a decree for divorce in favour of the appellant-husband. The respondent wife, Nathi Bai carried the matter to the Apex Court in Civil Appeal No.3422/1997 that came to be allowed vide order dated 8.10.2002 and order of the Division Bench in the present appeal, No.244/1993 dated 1.3.1997 was set aside and the matter was remitted to the Division Bench of this Court for fresh hearing and disposal in accordance with law.
4. The appellant moved an application u/O.41 R.27 CPC for taking subsequent events on record. Taking note of the various contentions and in the light of directions of the Apex Court vide order dated 8.10.2002, the Coordinate Bench of this Court vide judgment dated 9.10.2006, dismissed the appeal filed by the appellant. The appellant filed a review petition which too came to be dismissed by the Coordinate Bench of this Court on 20.12.2006 and the application filed u/O. 41 R.27 CPC remained unattended. The appellant filed Civil Appeal No.(S) 366-367/2009 before the Apex Court against the judgment of this Court dated 9.10.2006 and dismissal of the review application dated 20.12.2006. The Apex Court allowed the appeal of appellant and again remitted the matter back to this Court with a direction to take into consideration application u/O.41 R.27 CPC and decide afresh. The operative portion of the order of Apex Court is quoted thus :-
   • Keeping all the circumstances in view, since avowedly the High Court has not decided the appellant’s application under Order XLI Rule 27 CPC, the course which commends itself to us is to remand the matter in its entirety to the High Court with a direction to first decide the Appellant’s application under Order XLI Rule 27 CPC. The Impugned Order is accordingly set aside.
   • The matters are remanded back to the High Court for consideration afresh.
   • Appeals stand disposed of. No order as to costs.
5. After the matter was remitted back to this Court, application u/O.41 R.27 was allowed and the judgments annexed thereto were taken on record vide order dated 9.7.2015. Having noticed the above facts, the salient features for disposal of present appeal are noticed hereunder.
6. Admittedly the appellant-husband got married with the respondent-wife on 27.4.1979 as per the Hindu rites and custom. It has been alleged that in the month of February 1983 respondent wife left the house of appellant husband without any reason and did not turn back. The appellant filed a divorce petition u/sec. 13 in the year 1986 which the appellant withdrew as both the parties entered into a compromise. It is further alleged that in the month of August 1986, respondent came back to the house of the appellant and for some time the behaviour of the respondent was normal, but she started giving threatening and started quarreling with the appellant. It is further alleged that torture of the respondent had gone to such an extent that the respondent lodged a false case against him u/sec. 498-A and 406 IPC in the police station Vigyan Nagar, Kota, on 28.8.1986 against her in-laws in which allegations were levelled regarding demand of dowry against the father and brothers of the appellant and the police after investigation submitted final report, the Investigating Officer having found the entire allegations to be false and that was accepted by the Competent Court of jurisdiction. It is also alleged that the respondent pushed the cycle of the appellant-husband and caught hold of his collar and after abusing him shouted that she would not allow him to go to duty and shut him up in the room and thus there was continuous quarrel in between the parties.
7. The appellant has also lodged a report on 30.8.1988 against the respondent. It has further been stated that the appellant is serving in Instrumentation Ltd., Kota, and the respondent on one occasion reached the factory premises and misbehaved with the appellant outside the factory gate. It is also alleged that on 2-3 occasions respondent wife brought two persons who attacked the appellant at the time when he was returning from his office. It has further been alleged that the respondent was bent upon to commit his murder and looking to the conduct and behaviour of the respondent and fact of cruelty inflicted upon the appellant, the appellant was unable to live with her and thus an application was moved u/sec. 13 of the Act 1955 in the year 1989, which came to be dismissed as aforesaid.
8. Mr. Kasliwal, the learned counsel for the appellant has contended that taking into consideration the facts brought in the application for divorce coupled with the material on record, clearly proves that the respondent caused continuous mental and physical cruelty on the appellant husband. The learned Family Court has not considered the material on record insofar as the cruelty of the respondent wife is concerned. There are oral as well as documentary evidence available on record which proves the same. He further contends that the behaviour and conduct of the respondent wife since beginning was not proper and on a small pretext, she left the matrimonial home initially and admittedly did not come for a period of about 3 years and the appellant had to file an application u/sec. 13 of the Hindu Marriage Act before the Family Court, which however was withdrawn because of the intervention of the family members and her relatives, the respondent wife came back to the matrimonial home and after staying, her behaviour for sometime was normal but a false complaint was made against the father and brothers of the appellant on 28.9.1986 with the allegations of beating and demanding dowry, however, after investigation the police filed final report and the same was accepted by the competent court.
   • He drew attention on the complaints/cases :-
   • (i) 28.8.1986 :  FIR No.62/1986 u/sec. 498A IPC by Nathi Bai against appellant’s father and brothers : After investigation police found allegations false.
   • (ii) 5.10.1989 : Complaint by Vikas Adhikari, Panchayat Samiti Sultanpur (where father of the appellant Nathu Lal was employed) to the effect that respondent Nathi Bai came at the office and tried to create nuisance by which office work was disrupted.
   • (iii) 14.12.1989 : Complaint by Dwarka Lal, father of the appellant against Nathi Bai and her brothers to the effect that they came at their house and misbehaved with him and mother of the appellant, even the clothes of appellant’s mother were dis-robed.  On an FIR having been filed by the appellant, challan was filed against the respondent before the competent court and the respondent had been bound down by the Court of Law to behave well with the appellant.
   • (iv) 23.3.1990 : FIR No.37/1990 u/sec. 498A IPC by Nathi Bai against father, mother and brothers of appellant. Vide order dated 18.1.2003 passed by Addl. CJM, Fast Track, Digod (Kota), accused were found not guilty in Case No.428/2002.
   • (v) 7.4.1990 : FIR No.42/1990 u/sec. 498A and 324 IPC by Nathi  Bai against father and mother of appellant. Vide order dated 31.1.2003 passed by Addl. CJM, Fast Track  Digod (Kota), accused were found not guilty in Case No.117/2002.
   • (vi) 21.5.1990 : Complaint No.867 registered at Police Station Vigyan Nagar, Kota, on information received over telephone that at the factory gate of Instrumentation Limited Nathu Lal and Nathi Bai were quarreling and fighting.  Both were taken to the police station by police. However, subsequently they were released on bail by order of ADM (City) Kota.
   • (vii) 5.12.1990 : Dwarka Lal, father of appellant filed a complaint before Dy.SP (Rural), Kota, to the effect that Nathi Bai tried to destroy crop of Wheat in his fields by discharging canal water.
   • (viii) 14.3.1991 : FIR No.21/1991 u/sec.341, 323/34 IPC by Mangi  Bai (mother of appellant) against Nathi Bai and her brothers. Vide order dated 25.7.2002 passed by Judl. Magistrate (First  Class), Digod, accused were found guilty in Case No.366/1997.
9. He also drew attention of this Court on application under O.41 R.27 CPC by which he placed reliance on three aforementioned orders dated 25.7.2002 (Case No.366/1997), 18.1.2003 (Case No.428/2002), and 31.1.2003 (Case No.117/2002) passed by Digod Courts. Thus, he contended that there has been plethora of cases and even one criminal case is sufficient to prove cruelty whereas in the instant case there are several criminal cases which certainly proves to the hilt about the physical and mental cruelty against the appellant. He also relied upon the statements of several witnesses recorded, which clearly brings on record the behaviour of the respondent.
10. He further contended that admittedly from August 1989, now almost about 27 years, both husband and wife are living separately, and there being no issue out of the wedlock, no bonding between them, the appellant is now aged about 55 years, certainly needs now a peaceful life, at-least at this stage of his career/life, which has been totally ruined/spoilt by the respondent. He contended that both the appellant and respondent merely can be said to be husband and wife on record but in reality their marriage does not subsist and it is a case of irretrievable breakdown of marriage and under such circumstances, the decree of divorce deserves to be granted in favour of the appellant and the appeal may be allowed. He relied upon the following judgments :-
    • Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558;
    • Mayadevi (Smt.) v. Jagdish Prasad (2007) 3 SCC 136;
    • Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 288;
    • Smt. Savitri Balchandani v. Mulchand Balchandani AIR 1987 Delhi 52;
    • Jayakrishna Panigrahi v. Smt. Surekha Panigrahi AIR 1996 Andhra Pradesh 19;
    • Smt. Sadhana Srivastava v. Arvind Kumar Srivastava AIR 2006 Allahabad 7;
11. Per contra Mr. Suresh Pareek, learned Sr. Counsel for the respondent, assisted by Mr. N.C. Sharma, Advocate, contended that the respondent was always ready, willing and prepared to live as wife of the appellant, peacefully but the appellant was never interested in keeping the respondent and created hindrances by filing complaints for no rhyme or reason. He further contended that the respondent who is present in Court, has categorically, expressly and openly said that she is ready and willing to live with the appellant in the manner appellant wishes, and words before this Court should be taken in the right spirit and at-least the sacred function of the Court in matrimonial matters, should be taken sympathetically, as it is a matter of life and death of a poor and illiterate lady from a village background who do not know the niceties of law, may have taken some abrupt action which does not come within the definition of cruelty.
12. He further contended that the appellant and his family members demanded dowry and only under such compelling circumstances, complaint was lodged u/sec. 498A IPC by the respondent which by itself cannot be said to be a cruelty. She lived with the appellant, admittedly, from August 1986 to the year 1989 but then, the appellant himself was not interested and created complex situations.
13. He further contended that the appellant also filed an application for judicial separation which too was dismissed vide order dated 5.12.1995, and contended that the judgment of Trial Court relied upon by the learned counsel for the appellant and brought on record with the application under O.41 R.27 CPC were not before the Family Court and the same cannot be taken into consideration and if at all required, the matter may be remitted to the Family Court for reconsideration of subsequent developments/judgments.
14. He further contended that the Family Court has taken into consideration each and every factor, particularly the statements of witnesses and came to a correct conclusion which is not required to be interfered with, and vehemently supported the order passed by the Family Court and contended finally that the husband being habitual of filing divorce petition or judicial separation application, wants to get rid of her by seeking divorce by some method. He further contended that age is no consideration in matrimonial matters, rather contended that at this age of about 55 years or so, both husband and wife needs companionship and endeavour of the Court should be to see that they are reunited not only on papers but in reality.
    • He relied upon the following judgments :-
    • Archna Sharma v. Suresh Kumar Sharma I (1995) DMC 133 [Punjab & Haryana High Court];
    • Sujit Banerjee v. Anita Banerjee II (1997) DMC 48 (DB) [Calcutta High Court];
    • Vegi Jagadesh Kumar v. V. Radhika II (2000) DMC 470 (DB) [Andhra Pradesh High Court];
    • Smt. Santosh Sharma v. Ashok Kumar AIR 2001 Delhi 422;
    • Jagat Singh v. Sarojini Devi I (2002) DMC 645 [Punjab & Haryana High Court];
    • Bishwanath Pandey v. Anjana Devi II (2002) DMC 397 (DB) [Jharkhand High Court];
    • Yudhishter Singh v. Smt. Sarita I (2003) DMC 538 (DB) [Rajasthan High Court];
    • Hari Ram v. Lichmaniya and Others AIR 2003 Rajasthan 319;
    • P.Malleswaramma v. P.Prathap Reddy AIR 2006 Andhra Pradesh 4;
    • Jitendra Singh v. Yashwanti II (2008) DMC 482 [Delhi High Court];
    • Pramodkumar C Shah v. Rajulaben Pramodkumar Shah II (2013) DMC 240 (DB) (Guj.);
    • Kajal Das v. Juli Mahajan (Das) III (2013) DMC 295 (DB) (Gau.);
    • Chetan Dass v. Kamla Devi RLW 2001 (2) SC 201;
15. We have heard the learned counsel for the parties and have gone through the impugned order and judgments passed by this Court earlier minutely and the observations of the Apex Court.
16. At the outset, we may quote sec. 13(1) of the Act 1955 and also quote sec. 498A, 323 and 406 IPC for disposal of the present appeal, which reads ad infra :-
    • 13. Divorce-
    • (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
    • (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
    • (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
    • (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
    • (ii) has ceased to be a Hindu by conversion to another religion ; or
    • (iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
      • Explanation- In this clause- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or
    • (iv) has been suffering from a virulent and incurable form of leprosy; or
    • (v) has been suffering from veneral disease in a communicable form; or
    • (vi) has renounced the world by entering any religious order; or
    • (vii) 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 it, had that party been alive;…
    • 498A. Husband or relative of husband of a woman subjecting her to cruelty.
    • Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
      • Explanation.For the purpose of this section, cruelty means
      • (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
      • (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
    • 323. Punishment for voluntarily causing hurt.
    • Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
    • 406. Punishment for criminal breach of trust.Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
17. Admittedly the ground for divorce taken by the appellant against the respondent is that the respondent has treated the appellant with cruelty.
18. It would also be apt to quote the statements of material witnesses from both the sides to make home what has transpired in between the parties :-
    • AW-1 Nathulal son of Dwarka Lal stated, inter alia, that on 12.5.1989 at about 8:AM, Nathi Bai misbehaved with him and tried to prevent him from going to his office. He was rescued by neighbourers. One day she fought with him and told that neither she will allow him to go to his duties, nor let him live in Kota, and threatened to even kill him. He also stated that she along with her brothers after abusing him went to his parents’ house where they misbehaved with them and even declothed his mother.
    • AW-3 Dwarka Lal son of Magan Lal, inter alia, stated that Nathi Bai used to misbehave with him and his wife and even they have suffered beating from her and her brothers. On being cross examined, he stated that he has no knowledge how burn marks at her leg were received by her but she used those marks to gain sympathy from others.
    • AW-4 and AW-5 Dinesh Gautam son of Moti Shankar and Banwari Lal son of Madan Lal, have stated that they have witnessed the incident of Nathu Lal being abused by Nathi Bai in front of the factory gate of Instrumentation Ltd.
    • AW-6 Shyam Manohar son of Chaturbhuj, inter alia, has stated in his statement that on 12.3.1991 at about 2:30 in the afternoon when he was going home from village bust stand, he saw 20-25 persons together near the Primary School, and Nathi Bai was also there along with her three brothers and they were abusing and ill-behaving with father and mother of the petitioner Nathu Lal.
19. On perusal of the witnesses at the instance of the appellant, in our view, clearly proves that the respondent is in the habit of misbehaving not only with aged parents of the appellant and his brothers, but the appellant himself. Leaving apart the statement of AW-1, as he is petitioner appellant-Nathu Lal. Dinesh Gautam (AW-4), Banwari Lal (AW-5), Shyam Manohar (AW-6) and other witnesses have described about the incident of fight which ensued in between the parties outside the factory gate, where the respondent was found beating the appellant and abusing him in front of the staff and officials of the Instrumentation Ltd. NAW-1 Nathi Bai wife of Nathu Lal in her statement, inter alia, stated that she did not fight with her husband on 12.5.1989 nor abused him. She also denied that she had ever threatened her husband. She then stated that after September 1989 she neither went to her in-laws’ house nor abused them. She denied the allegation that she ever wished that her husband should die so that she gets employment in his place. She alleged that for want of dowry, Nathu Lal had left her and differences have widened between them. NAW-2, NAW-3 and NAW-4 Ghanshyamdas son of Madhodas, Ram Ratan Swami, and Birdhilal both sons of Ram Narain, inter alia, stated that dispute between the parties is for demand of dowry by Nathu Lal’s parents. NAW-5, NAW-6 Saroj Singh daughter of Ravindra Pratap Singh, and Kamla Bai wife of Ramkumar, have stated, inter alia, that one day Nathi Bai was weaping and standing outside the house, they enquired from her about the reason of her weaping and standing outside the house, to which Nathi Bai answered that she is wife of Nathu Lal but he has sent a notice/letter of divorce to her. She further stated that when the dispute between the parties grew up, one day in 1986 members of the colony including them, went to Vigyan Nagar Police Station and lodged a report to the effect that Nathi Bai is wife of Nathu Lal but he uses force against her and misbehaves with her. Both the witnesses further stated that younger brothers were residing with the petitioner who used to forcibly push Nathi Bai to go out of the house and torture her. They also claimed that with the help other neighbourers they made Nathi Bai to enter in the house.
20. We have gone through the statements recorded at the instance of the respondent. While Ghanshyamdas (NAW-2), stated that there was a demand of gold chain in dowry which was conveyed to him by the father of respondent-Nathi Bai, however, in cross-examination he denies having any talk with the appellant in this regard. Ram Ratan Swami (NAW-3), though supports the version of Ghanshyamdas (NAW-2), but speaks of the incident about 10-12 years old and that too by mentioning that respondent’s father had told him about demand of dowry, however, he admitted in cross-examination that the appellant-Nathu Lal never raised any demand for any chain in his presence. Birdhilal (NAW-4), though he is stated to be a Head Constable in the Police Department, but he does not remember his place of posting when appellant’s father and appellant had said about demand of one tola gold chain. In cross-examination, however, he stated that the said incident did not happen in his presence. Ms. Saroj Singh (NAW-5), and Kamla Bai (NAW-6), Mrs. Santosh wife of Suresh Chandra (NAW-7), Mrs. Kesar wife of Radhe Shyam (NAW-8), Mrs. Shanti Verma wife of K.L. Verma (NAW-9), all spoke about the incident of 1986, which in our view is not required to be stressed upon particularly in view of the fact that thereafter admittedly both were living jointly at the instance of the family members of the respondent, and it is only after 1989 that further disputes took place in between the parties.
21. It would be appropriate to deal the judgments of the Apex Court which have laid down the principles which help discharge the Family Court and other Courts the onerous task in a more realistic and effective manner to decide petitions like this.
22. In the case of Naveen Kohli v. Neelu Kohli (supra), the Apex Court has laid down the principles which will help discharging the Family Courts and other Courts the onerous task in a more realistic and effective manner to decide the petitions, and the same is quoted thus :-
    • 66. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act 1955.
    • 67. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would be around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.
    • 68. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920 included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond, J. in a passage which has now become classic, enunciated the breakdown principle in these word: “The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.”
23. The Apex Court in the case of Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 has held that cruelty is a state of mind, reiterating certain illustrative cases where inference of mental cruelty can be drawn. It would be appropriate to quote the relevant para 101 of the judgment :-
    • 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 sterilization 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.
24. The Apex Court has found that there can be no uniform standard but deemed it appropriate to enumerate some instances of human behaviour in dealing with the case of mental cruelty. In our view, sub paras (i), (ii), (x) and (xiv) are relevant in the instant case.
25. In the case of K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226, not only the Apex Court adjudged the above points of mental cruelty as expressed in the case of Samar Ghosh (supra) but also added few more points namely, making unfounded defamatory allegations against spouse or his relatives even in pleadings, filing repeated false complaints or issuing notices or news items which may have adverse impact on the business prospects or the job of spouse and filing repeated complaints and cases against spouse in the facts of the case, amount to causing mental cruelty.
26. It is true that the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. It is true that every matrimonial conduct which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses which happen in day to day married life may also not amount to cruelty. Mental cruelty may consist of verbal abuses and insults, by using filthy and ugly language leading to constant disturbance of mental peace of the other party.
27. In the case of Mayadevi (smt) v. Jagdish Prasad (supra) the Trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to wife’s behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened the husband to kill him and prosecute him. It was also noted by the Trial Court that allegation made by her alleging dowry demand was disbelieved and the police gave final report stating that the case was falsely lodged and on these facts the Trial Court granted the decree of divorce, which was confirmed by the High Court. The Apex Court taking into consideration the facts and circumstances in that case held that the husband was subjected to mental and physical cruelty and thus dismissed the appeal.
28. In the present case as well, the case instituted u/sec. 498-A IPC was dismissed and the same has not been assailed before higher forum.
29. In the instant case, the contention of learned counsel for the respondent that proceedings u/sec. 498-A IPC and other cases were filed subsequently cannot be considered, but in the light of the judgment of Vishwanath Agrawal (supra) the contention of learned counsel for the respondent is repelled.
30. We find that the judgments in Vishwanath Agrawal v. Sarla Vishwanath Agrawal (supra), Smt. Savitri Balchandani v. Mulchand Balchandani (supra), Jayakrishna Panigrahi v. Smt. Surekha Panigrahi (supra), Smt. Sadhana Srivastava v. Arvind Kumar Srivastava (supra), A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22, and Suman Kapur v. Sudhir Kapur (2009) 1 SCC 422 were relied upon wherein it is held that false, scandalous, malicious, baseless and unproved allegations even in the written-statement is cruelty to the other party.
31. It would also be appropriate to mention about the judgments relied upon by the learned counsel for respondent.
32. In the case of Sujit Banerjee v. Anita Banerjee (supra) the High Court found that a unilateral act of one spouse, reducing the relationship to a situation where the marriage would be deemed to have broken down and such act unless made an issue by the wronged spouse cannot be deemed to be a valid ground to take away the legal right which was caused by the solemnization of marriage. In the abovesaid case, wife did not opt to dissolve the marriage in spite of suffering at the hands of the husband and there was bona fide on her part. On these facts the High Court dismissed the appeal. In our view, the facts are different and entirely distinguishable to what are available in the instant case.
33. In the case of Archna Sharma v. Suresh Kumar Sharma (supra), the Court found that allegations of cruelty were not pleaded in the divorce petition by seeking amendment thereto and, therefore, not put to trial, and the Court observed that the allegations of cruelty could not be taken note of while granting divorce unless these were made a part of the divorce petition. The High Court in that case was not inclined to grant decree of divorce. However, in the light of the judgment in Vishwanath Agrawal (supra) of the Apex Court, where it has been held that subsequent events can be taken note of and considered, the said judgment is contrary to the law laid down by the Apex Court and is distinguishable. To the same effect is the judgment relied upon by the learned counsel for respondent in the case of Smt. Santosh Sharma v. Ashok Kumar (supra).
34. Similarly in the case of Vegi Jagadesh Kumar v. V. Radhika (supra), there were mere accusations, taunts by one against other and the High Court found that they were not willful in nature and does not constitute cruelty. The High Court also observed that the other party committed willful and unjustifiable acts inflicting pain and misery on the complainant and causing injury to his/her health. The conduct of complainant must be serious and higher than the wear and tear of married life. It is not cruelty, if acts complained of are not violent in nature. Mere complaints, accusations, or taunts by one against the other if the same are not willful in nature, do not constitute cruelty. The other judgments relied upon by the learned counsel for respondent in the cases of Pramodkumar C Shah (supra), Jagat Singh (supra), Jitendra Singh (supra), Chetan Dass (supra), Kajal Das (supra), Yudhishter Singh (supra), Hari Ram (supra) and P.Malleswaramma (supra), are judgments where the Courts found that cruelty on the spouse was not proved, or one cannot take advantage of his own wrong and on mere fact that erring spouse is moody, whimsical, irritable or inconsiderate, are no grounds for divorce. However, we have taken into consideration the judgments of the Apex Court and the conduct of the respondent in repeatedly causing cruelty on the appellant. Therefore the judgments are distinguishable on facts.
35. In the instant case in our view there are several complaints against the respondent who took law into her hands, tried to beat the appellant and his family members not only once but on other occasions as well and created commotion even outside the factory gate with the appellant, coupled with filing of cases u/sec. 498-A and other facts clearly lead to irresistible conclusion that cruelty was certainly caused by the respondent against the appellant husband both mental as well as physical.
36. Taking into consideration the facts as noticed hereinbefore, and the complaints lodged by both the sides, and in particular at the instance of the respondent-Nathi Bai, it is clear that the criminal cases filed at her instance stood dismissed. However, the criminal cases lodged at the instance of the family members of the appellant stood allowed against the respondent, who was found guilty, and in our view taking into consideration the judgments cited supra, clearly make out a case of physical and mental cruelty against the appellant, and a clear case is made out for grant of decree of divorce.
37. We have also noticed that the respondent filed several complaints against the appellant, she was also convicted in one of the cases involving father, mother and brothers of the appellant, and was sent to jail, whatever time she lived with her husband, she never lived peacefully with him. She left her matrimonial home and came back after more than 3 years. Thereafter also there was no improvement in the conduct of the respondent, as is evident from criminal complaints and the reports of the independent persons against her behaviour so as to gain sympathy of any person. The relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the one that it will be harmful or injurious for him/her to live with the other side. We have given hereinbefore the cases instituted by both the parties against each other. While the cases instituted at the instance of respondent Nathi Bai were found false or/and the accusations made by Nathi Bai were found not guilty, however, in the complaints made at the instance of the petitioner or/and family members, challan was filed against accused Nathi Bai and her brothers and they were found guilty. Thus, this even otherwise proves that the respondent was in habit of filing repeated cases and in our view even one case is sufficient to prove mental cruelty, at-least in matrimonial matters like this.
38. Though the Court on several occasions tried to persuade both the parties to come to amicable solution through mediation as Courts go slow at-least in matrimonial matters to try to make rapprochement so that bonding of marriage which is considered to be sacred and sacrosanct in the Hindu Law, is maintained/retained.
39. In matters like this, something more is required to be considered rather than ordinary wear and tear of married life and the Courts have to be very practical and pragmatic in approach while dealing with the divorce petitions filed on the ground of cruelty or otherwise. Foundation of a sound marriage is tolerance, adjustment and respecting one another. The Court has to bear in mind that the problems before it are those of human beings and a delicate bond of husband and wife should be maintained.
40. Taking into consideration that the respondent has been threatening that she will either put an end to her life or kill the appellant, abusing the husband time and again and threatening that she will make him loose his job, insulting the husband in front of others and his parents also, complaints of independent persons regarding her quarrelsome and uncalled for behaviour, tarnishing not only the image of her husband but also his parents, are almost so grave an order as to imperil the appellant’s sense of personal safety, mental happiness, job satisfaction and reputation, in our humble view a case of cruelty is clearly made out. Taking into consideration that admittedly both have lived separately since 1989 i.e. almost 27 years now and have been fighting tooth and nail against each other, in our view it also can be said to be irretrievable breakdown of marriage or rather it is a failed marriage and the delicate bond of marriage of sacrifice no more is apparent in addition to cruelty and we feel appropriate to let both husband and wife now be made free from the marriage bonding which was solemnized as per Hindu rites and customs in April 1979 i.e. 37 years ago by now, may be dissolved.
41. In our view, taking into consideration the statements of the witnesses of both sides, the mental cruelty stands proved against the appellant at the instance of the respondent, and the appellant husband deserves indulgence in seeking their marriage dissolved.
42. A feeble attempt was made by the learned counsel for respondent that the second petition filed by the appellant on the same subject is barred by the principle of res judicata. In our view, taking into consideration the subsequent development and fresh material/evidence, which has come on record for filing of the divorce petition subsequent to earlier petition having been withdrawn, is in order as it can always be filed in view of the subsequent developments. Equally important is that no ground was raised before the Family Court insofar as the second petition is concerned. Accordingly, the argument of learned counsel for the respondent, is rejected.
43. For the reasons aforesaid, the appeal deserves to be allowed and we quash and set aside the judgment and decree dated 24.2.1993 and their marriage solemnized on 27.4.1979 stands dissolved. A decree for divorce is hereby granted to the appellant. No costs.
    (J.K. Ranka) J.                            (Ajay Rastogi) J.

    db

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 !!

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• 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

Un proven criminal cases, wild allegations, is cruelty ! Divorce even before 498a decreed !!

Husband files restitution case on wife requesting her to return to matrimony. Once the notice is served on wife, she unleashes a 498a, 406, CrPC 125 etc cocktail on husband (circa year 2002). She is unable to prove any of the allegations. The Hon Allahabad HC notices that “….Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband…” categorically states that such false allegations and criminal case tantamount to cruelty on the husband and grants divorce !!

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HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 19

Case :- SECOND APPEAL No. – 844 of 2006

Appellant :- Narayan Prasad Saraswat

Respondent :- Smt. Shaifali @ Muniya

Counsel for Appellant :- M.K. Gupta, Pankaj Agarwal

Counsel for Respondent :- D.K. Dwivaedi

Hon’ble Pramod Kumar Srivastava, J.

1. At the time of hearing only counsel for the appellant was present. None was present on behalf of respondent even in cause list was revised. This appeal had already been admitted, but at that time substantial question of law was not framed. Heard arguments of learned counsel for the appellant.
2. Original suit Matrimonial Petition no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was initially filed for the relief of restitution of conjugal rights. After it some criminal case was instituted by opposite-party (wife Smt. Shaifali @ Muniya). Then plaint was amended for the relief of divorce on ground of desertion, adultery and cruelty.
3. In written-statement filed in trial court, O.P.- Smt. Shaifali @ Muniya had admitted her marriage with petitioner and pleaded that petitioner and his family members had been treating her with physical and mental cruelty. She had not committed any cruelty. The petitioner had tortured her by beating her and by demanding dowry. So she is not ready to live with her husband-petitioner. The petitioner had evicted her from his house and had filed suit on incorrect facts; therefore petition is liable to be dismissed.
4. After framing issues and accepting evidences of the parties, the Civil Judge, S.D. (/J.S.C.C.), Aligarh had dismissed the divorce petition. The trial court had given finding that although it is admitted that criminal case was initiated by O.P. against the petitioner and his family members, who had been released on bail, but said criminal cases did not amount to desertion or cruelty. Trial court had found that in written-statement the O.P. had pleaded that she is not willing to reside with husband-petitioner, and although several attempts of mediation and reconciliation between parties had failed, but learned Civil Judge has also given finding that petitioner had failed to prove the grounds of desertion, adultery or cruelty, therefore divorce petition is dismissed.
5. Aggrieved by the judgment of trial court, Civil Appeal no. 41/2006 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was preferred which was heard and dismissed by the judgment dated 14.08.2006 of Additional District Judge, Court No.-2, Aligarh. Lower appellate court had held in this judgment that during evidence O.P.-wife had file affidavit to the effect that she is willing to continue her matrimonial relationship with her husband, and the petitioner-appellant had failed to prove that irretrievably broken. With these findings, first appellate court had confirmed the finding of trial court and dismissed the first appeal.
6. Aggrieved by the judgment of trial court, as well as of the first appellate court, present second appeal has been preferred by petitioner of the original case.
7. Present appeal has been admitted but at that time substantial question of law was not framed, which is framed as under: “Whether the marriage of the parties had irretrievably broken due to desertion, adultery and cruelty; and otherwise finding of the lower courts are erroneous and perverse ? If so its effect ?”
8. Learned counsel for the petitioner-appellant contended that in her written-statement she is not ready to live with her husband-petitioner, and several proceedings of mediation and reconciliation between parties, and attempts of courts in this regard had failed. Respondent had committed cruelty by lodging several false criminal cases against the appellant and his family members and by leveling false allegations in her pleading, parties are living separately for last about 15 years and there is no chance of their compromise or living together; therefore appeal should be allowed for the decree of divorce.
9. In present matter petitioner-appellant had filed suit for the relief of restitution of conjugal rights with O.P.-respondent on 01-05-2002, but when summons of this case was served then O.P.-wife had filed several criminal cases for cruelty due to dowry demand and manhandling for offences u/s 498-A, 323 IPC & section ¾ Dowry Prohibition Act, case of maintenance u/s 125 CrPC, criminal complaint case u/s 406, 109 IPC. The burden of proving the fact of expelling wife-O.P. by petitioner without any sufficient reason is on wife- O.P. (complainant) because negative facts cannot be proved. It is the respondent-wife who has been alleging such facts, therefore the burden of proving these facts were on her, and in absence of any such evidence, the plea of desertion and living separately by her without sufficient reasons should have been accepted by lower courts.
10. The petition of divorce was filed on three grounds. The first was desertion and second was cruelty. So far as the first point of desertion is concerned, it is admitted fact that petitioner-appellant had filed original suit no. 397/2002 against his wife-respondent u/s 9 of the Hindu Marriages Act for restitution of conjugal rights. During pendency of said proceedings, he amended the original suit for divorce under Section 13 of the Hindu Marriage Act. There has been no finding of any of the lower court that during pendency of original suit, the parties were willing to live together together. On the contrary it was found that initially petitioner-appellant was willing to live with respondent-wife, but when she started filing several criminal cases then he amended the suit for the relief of divorce. It is pertinent to mention that in her written-statement O.P.-respondent had specifically declined to live with husband-appellant. The differences between the parties from the beginning and their living separately for more than 14 years is admitted fact, but there is no evidence that respondent was expelled from house of appellant or that she is residing separately for any sufficient reason. This proves the ground of desertion as required u/s 13 of Hindu Marriage Act.
11. Apart from it, in matrimonial disputes propriety of the things should also be specially considered. In present matter, according to the petitioner the parties are living separately from 19-08-2001, and according to respondent-wife they are living separately since 2002. Thus, admittedly parties are living separately for many years. Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband, , and several mediation and reconciliation proceedings between parties has also failed. These facts make it explicitly clear that there appears no chance of reconciliation between the parties who have developed feelings of ill will, hatred, antagonism and animosity; and the respondent is prosecuting the criminal case for conviction and incarceration of appellant and his family members.
12. So far as another plea of cruelty in present matter is concerned, it has been not proved till now that petitioner had treated the respondent-wife with cruelty or had committed unnatural sexual activities with her as pleaded in written-statement. The burden of proving such facts lies on the person who has asserted these facts, that is, respondent-wife, but these facts could not be proved till now. Leveling wild allegation and prosecuting proceedings for conviction of husband as well in-laws for sending them in jail amounts to cruelty.
13. The word ”cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the Section 13 of Hindu Marriage Act in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ‘‘cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively. The allegation of criminal mis-appropriation of stridhan, dowry demand and physical torture made by the respondent-wife against the appellant husband in her written statement, is nothing but mental cruelty of such a nature that appellant husband cannot be reasonably asked to live with the wife. The allegation of serious nature, and as stated above, constitutes grave assault on the character, honour and reputation of husband. Such allegations amount to cruelty entitling the petitioner to a decree of divorce. It cannot be doubted that the appellant-husband must have suffered traumatic experience because of the criminal proceedings against his father, mother and himself. The arrest and getting bailed out for criminal offences must have resulted in the loss of reputation and prestige of the husband and his family in the society. The mental agony of being arrested and detention in a criminal case resulting into loss of reputation and prestige in the society would also amount to cruelty.
14. In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 the Apex Court had held: “Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
15. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 the Apex Court had held as under:
    • “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. – – –
    • 8. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife to live in matrimonial home any longer with the husband. – – – –
    • 11. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. – – – – A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement.”
16. Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.
17. In present matter living separately of the parties for long time, prosecution and incarceration in criminal case of appellant, the agony and humiliation suffered, charging him with serious allegations and others family members and still facing prosecution for conviction and apprehension of incarceration amounts to cruelty to appellant.
18. The third ground for divorce taken by petitioner-appellant was that of adultery. Section 497 IPC reads- “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”. In this regard trial court had given finding that when Smt. Kamlesh saw her husband during physical relationship with respondent (Smt. Shaifali @ Muniya) then she (respondent) was not married. So at the relevant time respondent was un-married, therefore this allegation of involvement in adultery after marriage of respondent was rightly held not proved by lower courts.
19. On the basis of above discussion and considering the facts and circumstances of this matter, it appears that relationship of parties had been deteriorated to the extent that there is no possibility of any reconciliation. Their relationship have reached to the point from where there appears no possibility of any harmonious conjugal relations or their being living together as husband and wife and discharging matrimonial duties.
20. It would mean that apart from other problems that had come in their way, the main problem is the failure of matrimonial life. It would be seen that the appellant had not immediately rushed to sever his marital relations with the respondent. He had sufficiently waited for long time to see whether there would be any improvement in the relations with respondent and for the same reason he had filed petition u/s 9 of Hindu Marriage for restitution of conjugal rights. Having found no hope, he chose to file suit for divorce. In her pleading respondent refused to live with appellant. Even the mediation proceedings between the parties have failed. Therefore, it could safely be concluded that the appellant having tried all means to sustain the marital relations but having found that it was impossible for the respondent to gain such relationship, he had chosen to live apart from the respondent by moving petition for divorce. Therefore, there was sufficient ground for the husband-appellant to get relief of divorce.
21. In addition to legal errors as discussed above, the two lower courts have not considered these important material points at the time of deciding the matrimonial disputes, which amounts to infirmity and perversity in their judgments. Considering past experiences I am convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. In light guidelines laid down by Apex court in Satish Sitole v. Ganga, (2008) 7 SCC 734 I am of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty. This contention of appellant’s side is not unacceptable that the appellant’s marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very harsh, insensitive and unjust. Therefore said impugned judgments being erroneous and perverse are liable to be set aside.
22. Considering these facts, circumstances, the factum of living separately for many years and no possibility of any reconciliation, harmonious conjugal relations or future congenial matrimonial relations, it appears appropriate that when it is not possible for the parties to live together and to discharge their marital obligations towards each other, then there is no reason to continue their agony. Therefore on the basis of the forgoing discussion, the decree for dissolution of marriage should be granted on the ground of desertion and mental cruelty. The above substantial question of law is decided accordingly.
23. Accordingly the appeal is allowed. The impugned judgments dated 24.04.2006 and 24.08.2006 of the lower courts are set aside and matrimonial original suit no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) for the divorce is decreed. The decree of divorce is granted, and it is directed that the marriage between the parties shall stand dissolved.

 

Order Date :- 18.04.2016 SR

I CAN’T live with a low paid Inspector says wife. Husband gets divorce, wife gets 10K p.m. ! P&H HC

A wife leaves her husband and files false cases on him. She files complaints with his superiors etc. The Husband says that the wife deserted him because he was just an Assistant Sub Inspector (ASI) Even the couple’s son who is taken away by the mother, joins the father and testifies in favor of the father. Wife makes various allegations against the husband but the court observes that there is NOT an iota of evidence supporting these allegations. So, the decree of divorce granted in favor of the husband by the learned Additional District Judge, Panchkula, is confirmed by the Hon HC. However considering the salary of the husband and the cost of living, wife gets 10 K maintenance per month !!

This maintenance is in spite of the Hon court clearly stating the fact of desertion by the wife as follows “….Appellant-Kavita RW1 in her cross-examination has specifically deposed that she does not want to live with her husband. This statement coupled with the admitted fact that the appellant had left her matrimonial home on 31.7.2002, clearly proves the animus of desertion on her part…..”

The Husband argues that “…There is no justification for enhancement of the maintenance/alimony to 10,000/- per month. The appellant has to maintain himself, his aged mother and an unmarried son. He also has to provide financial support to his younger sister, who is a widow, along with her three minor children. ….” But the court refuses to accept that argument and dismisses his petition against enhancement of maintenance

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FAO Nos. M-66 of 2008 (O&M) and M-361 of 2013

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

FAO No. M- 66 of 2008 (O&M)
Date of Decision: Feb. 26,2016
Kavita ……………………………………… Appellant
Versus
Krishan Kumar ……………………….. Respondent

AND

FAO No. M-361 of 2013
Krishan Kumar ………………………….. Appellant
Versus
Kavita ……………………………………. Respondent

Coram:
HON’BLE MR. JUSTICE RAJIVE BHALLA
HON’BLE MRS. JUSTICE LISA GILL

Present: Mr. G.C.Shahpuri, Advocate
for the appellant (in FAO No. M-66 of 2008)
for the respondent (in FAO No. M-361 of 2013)

Mr. D.K.Singla, Advocate
for the respondent (in FAO No. M-66 of 2008)
for the appellant (in FAO No.M-361 of 2013)

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LISA GILL, J.

This judgment shall dispose of FAO No.M-66 of 2008 (Kavita v. Krishan Kumar) and FAO No.M-361 of 2013 (Krishan Kumar v. Kavita), which arise out of a matrimonial dispute between the parties.

FAO No.M-66 of 2008 has been preferred by Kavita being aggrieved of the judgment and decree dated 17.12.2007 passed by the learned Additional District Judge, Panchkula, whereby the petition filed by the respondent-husband Krishan Kumar under Section 13-A of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) has been allowed thereby dissolving the marriage between the parties.

FAO No.M-361 of 2013 has been preferred by Krishan Kumar challenging the order dated 18.9.2013 passed by the learned Additional District Judge, Panchkula, whereby maintenance under Section 25 of the Act has been enhanced from 3,000/- per month to 10,000/- per month.

The facts as revealed in the petition filed by Krishan Kumar under Section 13-A of the Act for dissolution of marriage are that marriage between the parties was solemnized on 13.9.1984 at Yamuna Nagar according to Hindu rites and ceremonies. Two children were born out of this wedlock. It was averred in the petition that his wife Kavita started taunting and harassing him some time after their marriage on account of his perceived poverty while asserting that she belongs to a rich family. She did not treat his old parents with due respect, refused to cook food and at times would serve half baked food or deliberately put extra chillies in it. It was further alleged that Kavita deserted the matrimonial home on 31.7.2002 without informing him or any other family member. She did not return home despite repeated requests and on the contrary made false allegations that Krishan was having extra marital relations. The appellant Kavita allegedly lodged false and frivolous complaints against Krishan Kumar. In this situation, a petition for divorce on the ground of cruelty and desertion was preferred by Krishan Kumar.

The appellant-wife, Kavita, while admitting the factum of marriage between the parties and birth of two sons denied all allegations of cruelty and desertion. It was asserted that the petition for divorce was filed by the husband as a counter-blast to an application filed by the appellant under Section 125 Cr.P.C. for maintenance, which was allowed. The husband was stated to be a haughty policeman who was cruel and indifferent towards her because of his illegitimate relations with other women. While denying that she left the matrimonial home on 31.7.2002 it is averred that it was the husband who deserted her as well as their two minor sons to fend for themselves without any rhyme or reason. Therefore, the husband should not be permitted to derive any benefit on account of his own wrong and the petition seeking divorce should be dismissed.

The following issues were framed by the trial Court on the basis of pleadings of the parties:-

1.Whether the petitioner is entitled to dissolution of marriage and decree of divorce on the ground that he has been treated with cruelty as alleged? OPP

2.Whether the petitioner is entitled to a decree of divorce on the ground that he had been deserted by the respondent? OPR

3.Whether the petitioner has no cause of action to file the present petition and is not maintainable in the present form? OPP

4.Whether the petitioner is estopped from filing the present petition by his own act and conduct? OPP

5.Relief.

Evidence was adduced by the parties. The respondent-husband deposed as PW1 and examined Deepak Kumar PW2, his son, and Brahm Pal, his brother, and produced documentary evidence. The appellant appeared as RW1 and adduced her evidence. Learned trial Court on the basis of evidence on record directed dissolution of marriage between the parties on the ground of cruelty and desertion on the part of the wife.

Learned counsel for the appellant vehemently argued that the learned trial Court has grossly erred while passing the impugned judgment and decree, especially keeping in view the fact that since the marriage of the parties in the year 1984 there was no trouble upto the year 2002. It is submitted that it is opposed to all probability that the couple would have continued living together without any evidence of discord during all these years and suddenly parted ways in the year 2002 on the ground of cruelty meted out by the appellant since the inception of their marriage. It is urged that the appellant was forced to leave her matrimonial home because of illicit relations developed by the respondent-husband with one Sarabjit Kaur. It is, thus, apparent that the appellant was forced to leave her matrimonial home on account of the acts of the respondent-husband. There is nothing on record to prove cruelty or desertion on the part of the appellant, therefore, the impugned judgment and decree should be set aside.

Per contra learned counsel for the respondent with reference to the evidence on record supports the impugned judgment and decree and prays for upholding the same. It is submitted that desertion on the part of the appellant is apparent on record. She has categorically stated that she does not want to live with her husband who is working as an Assistant Sub Inspector with the Haryana Police. The appellant had withdrawn from her husband’s society without any reasonable or sufficient cause. She had been giving frivolous and false complaints to the police authorities against the respondent. The appellant wife miserably failed to prove adulterous relations of the husband as alleged. therefore, cruelty and desertion is clearly proved on the appellant’s part. He, thus, prays for upholding the impugned judgment and decree.

We have heard learned counsel for the parties and have gone through the pleadings and evidence on record.

It is admitted that marriage between the parties was solemnized on 13.9.1984 and two children were born out of this wedlock. One of the sons of the parties i.e. Deepak Kumar PW2 is residing with the respondent-husband.

A perusal of the record reveals that leaving of the matrimonial home on 31.7.2002 is admitted by the appellant though it is sought to be explained on the ground that it is due to the conduct of the respondent, namely, his illicit relations with one Sarabjit Kaur, that the appellant was forced to leave the matrimonial home. The name, parentage or address of said Sarabjit Kaur was not mentioned in the written statement though her name is mentioned in the cross-examination of the appellant RW1. The appellant has failed to lead any evidence to prove illicit relations of the respondent with the said Sarabjit Kaur or any other woman. All allegations of illicit relations made by the respondent remained unsubstantiated.

PW2 Deepak Kumar, the elder son of the parties, has deposed in favour of his father. Prior to the year 2004 he was living with his mother and younger brother. He has denied allegations of ill-treatment or physical abuse of the appellant at the hands of his father. Deepak Kumar affirms that the parties had separated in the year 2002. He denied that his parents were having normal relations. Averment of the appellant that her elder son Deepak Kumar had left her and joined his father due to greed of a motor-bike or mobile or that he was involved in a theft case in which the respondent helped Deepak Kumar is not substantiated by any evidence on record. Deepak Kumar PW2 has specifically denied that he was involved in a theft case. There is no evidence to show his involvement in such a case.

It is categorically asserted by the respondent- husband that the appellant had left the matrimonial house along with his two sons on 31.7.2002 and they could be located after about a period of one and a half month thereto. The appellant had reported his wife and children to be missing as is apparent from Ex.P2. Various complaints were submitted by the appellant against him. Filing of such complaints is admitted by the appellant. The appellant has admitted that she filed various complaints against the respondent before his superior officers also. The allegations of demand of dowry by the respondent or his family members are not supported by an iota of evidence on record. The appellant’s own testimony to the effect that there was no one in her parental family, thus the demand for dowry raised by her husband and in-laws could not be fulfilled, falsifies her stand for the simple reason that the question of demand of dowry does not arise in such a situation. Furthermore, the appellant categorically states that she was never beaten by the respondent on account of non fulfillment of demand of dowry. The argument on behalf of the appellant that no effort was made by the husband to resettle her along with the children or that there was a reasonable and sufficient cause for withdrawing from the matrimonial home is not borne out from the record. Appellant-Kavita RW1 in her cross-examination has specifically deposed that she does not want to live with her husband. This statement coupled with the admitted fact that the appellant had left her matrimonial home on 31.7.2002, clearly proves the animus of desertion on her part. There is nothing on record to prove that she was turned out of her matrimonial home. The parties have been living separately since the year 2002. The appellant has failed to prove any reason or cause much less sufficient or a reasonable cause to have withdrawn from the company of the respondent husband. Thus, the respondent-husband is entitled to a decree of divorce and we find no illegality or infirmity in the impugned judgment dated 17.12.2007 passed by the learned Additional District Judge, Panchkula.

Krishan Kumar-appellant in FAO No.M-361 of 2013 is aggrieved by the enhancement of maintenance from 3,000/- to 10,000/- awarded to the respondent- wife vide order dated 18.9.2013 passed by the Additional District Judge, Panchkula. Maintenance at the rate of 3,000/- per month was awarded to Smt. Kavita under Section 25 of the Act vide order dated 15.4.2008 after marriage between the parties was dissolved on 17.12.2007. An application was moved by Kavita for enhancement of this amount to 15,000/- as Krishan Kumar’s salary had increased to 24,782/- per month from 13,668/- per month. Furthermore, expenses incurred by her had also increased. Learned Additional District Judge, Panchkula, while taking into account the fact that the gross salary of the husband was 36,475/- per month as per the salary slip placed on record, awarded a sum of 10,000/- per month from the date of filing of the application.

Learned counsel for the appellant-Krishan Kumar submits that the maintenance pendente-lite under Section 24 of the Act was fixed at 4,000/- per month in FAO No. M-66 of 2008. There is no justification for enhancement of the maintenance/alimony to 10,000/- per month. The appellant has to maintain himself, his aged mother and an unmarried son. He also has to provide financial support to his younger sister, who is a widow, along with her three minor children. Such an enhancement could not have been made once permanent alimony and maintenance was fixed vide order dated 15.4.2008.

Learned counsel for the respondent-wife, on the other hand, submits that keeping in view the salary drawn by the appellant and the expenses which are incurred by the respondent-wife, the amount of 10,000/- is not a princely amount which calls for any reduction in the facts and circumstances of the case.

Having heard learned counsel for the parties and going through the file, we do not find any infirmity in the grant of 10,000/- per month to the respondent- wife under Section 25 of the Act. Section 25(2) of the Act specifically provides that, “If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub- section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.” Therefore, the argument in respect to maintainability of the petition is rejected being untenable. It is apparent that the husband was getting a salary of 13,668/- per month when maintenance at the rate of Rs.3000/- per month was fixed. Admittedly the gross salary of the husband was 36,475/- in August 2013 and cost of living has increased as well, thus the learned trial Court has committed no error in increasing the amount to be paid to the wife to 10,000/-. Learned counsel for the appellant-husband is unable to point out any illegality, infirmity or perversity in the impugned judgment and decree calling for a reduction in the amount awarded.

In view of the aforesaid discussion, both the FAO Nos. M-66 of 2008 (O&M) and M-361 of 2013 [ 13 ] appeals i.e. FAO No. M-66 of 2008 and FAO No. M-361 of 2013 are dismissed with no order as to costs.

( RAJIVE BHALLA ) ( LISA GILL )
JUDGE JUDGE

Feb. 26, 2016

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