Tag Archives: divorce granted

18 lakhs alimony in spite of 25 years desertion !! Rajastan HC

  • checkered history of fights between spouses
  • husband claims that wife was a widow from her earlier marriage and it was hidden from him
  • he claims that she was also cantankerous
  • after initial spats etc, wife finally leaves in 1991
  • after numerous cases, matter finally reaches Rajastan HC. HC Also sees desertion / decrees desertion
  • However, IN the INTEREST of justice, HC says pay her 6 lakhs in addition to the 12 lakhs already paid !!
    …..and that is EVEN after an 18 year desertion !! …..

IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR

:JUDGMENT:

S.B. CIVIL MISC. APPEAL NO.99/1996

APPELLANT :

Smt. Raj Kumari @ Chandrakala w/o Shri Nandlal D/o
Shri Badri Singh, by caste Mali Kachhawaha, resident
of Sardarshahar at present Bikaner.

Versus

RESPONDENT :

Nandlal son of Late Shri Dalchand Ji, By caste Mali,
Sangodiya, resident of Sardarshahar Churu.

Date of Judgment :: 17.10.2016

PRESENT

HON’BLE MR. JUSTICE ARUN BHANSALI

Mr. Salil Trivedi, for the appellant/s.
Mr. Rajesh Parihar ) for the respondent/s.
Mr. Vinit Sanadhya)


BY THE COURT:

This appeal under Section 28 of the Hindu Marriage Act, 1955 (‘the Act’) is directed against the judgment and decree dated 5.10.1995 passed by the District Judge, Churu, whereby the petition filed by the respondent under Section 13 of the Act has been accepted and marriage between the parties has been dissolved.

The dispute between the parties has a checkered history. The petition for dissolution of marriage was filed by the respondent-husband under Sections 12 & 13 of the Act, inter-alia, with the averments that the marriage was solemnized between the parties on 20.11.1989 at Bikaner at the residence of Dr. Durga Gehlot; a daughter was borne out of the wedlock on 5.9.1990. It was alleged that the family members of the wife at the time of marriage wrongly indicated her name as Rajkumari and her age at 21 years, in fact, her real name was Chandrakala and her age as per the school certificate was much more and she was widow of Dr. Anil Kumar Gehlot, whereas it was informed that she was unmarried. It was alleged that marriage was solemnized by committing fraud, the said fact came to the notice of the husband during the posting at Bikaner and FIR No.197 dated 25.10.1993 was lodged, which is being investigated. It was alleged that the wife was of cantankerous nature and behaved cruelly with the husband and family members. It was alleged that while behaving in the offending manner, the wife continued to move between her matrimonial home and parental home and on 7.12.1991, uncle (mama) of the wife, without permission took her with him. Whereafter, she did not turn up till 25.10.1993 and continued to refuse to live with the husband. Before 25.10.1993, several efforts were made for bringing her back, however, the parents and aunty of the wife intimated that if the husband wants to come and live with her, he can come and live, the wife was not prepared to go and live with him. It was also alleged that despite repeated efforts made between 7.12.1991 to 25.10.1993, the wife did not return back and has deserted the husband. Based on the said allegation of cruelty and desertion, the petition was filed.

The appellant herein was served with the notice of the petition, she appeared through counsel before the trial court, however, on 26.8.1995, her counsel pleaded no instructions and therefore, ex-parte proceedings were initiated.

On behalf of the husband, four witnesses were examined and documents were exhibited.

After hearing counsel for the husband, the trial court came to the conclusion that desertion was proved, cruelty was also proved, however, it was held that in so far as fraud and declaring the marriage as void was concerned, the same was not proved and consequently, passed decree on 5.10.1995 for dissolution of marriage.

Feeling aggrieved, the appellant filed an appeal before this Court. When initially, the appeal came up before this Court for hearing, by judgment dated 13.12.2001, the appeal was dismissed on merits.

Feeling aggrieved, the appellant approached the Division Bench by filing D.B. Civil Special Appeal (Civil) No.8/2002. The Division Bench by its order dated 15.10.2009, set-aside the finding recorded by the trial court as well as learned Single Judge regarding curelty. However, qua the ground of desertion, it was noticed that the learned Single Judge has not given his own finding on said aspect and question as to whether ground of desertion was made or not is required to be probed into thread bare by the learned Single Judge and in those circumstances, the matter was sent back to the learned Single Judge for deciding the question of desertion afresh.

During the pendency of the present appeal, post remand, efforts were made for resolving the dispute amicably; on 19.8.2015, it was noticed by this Court in the order-sheet that the appellant wanted the ex-parte decree granted in favour of the respondent-husband Nandlal to be set-aside as she wanted to press for restoration of status as married wife of Nandlal. It was also noticed that the respondent-husband has since remarried with another woman namely Ambika in November, 1997 and out of second marriage, a child named Aditya was born and was aged 15 years and that there was no possibility for restoration of matrimonial home with the appellant. However, readiness and willingness to pay permanent alimony was expressed, the court directed deposited Rs.12,00,000/- towards part payment of amount of permanent alimony and it was directed that the said payment would remain subject to final decision of the present appeal, which amount of Rs.12,00,000/- was deposited by the respondent as noticed by order-sheet dated 5.1.2016.

It is submitted by learned counsel for the appellant that the trial court committed error in granting the decree on the ground of desertion, inasmuch as, the respondent had failed to plead and prove the necessary ingredients for proving the ground of desertion. It was submitted that irrespective of the fact that matter was proceeding ex-parte against the appellant, it was incumbent for the trial court to objectively assess the evidence available on record, which clearly indicates that no ground is made out as envisaged by provisions of Section 13(1)(ib) of the Act.

Reference was made to the second explanation to Section 13 and it was submitted that there was reasonable cause for the appellant to leave the matrimonial home, inasmuch as, circumstances were created forcing her to leave the matrimonial home. It was submitted that the very fact that FIR was lodged by the respondent alleging fraud on 25.10.1993, necessarily means that before 7.12.1991, on account of allegations made, atmosphere was created which resulted in the appellant leaving the matrimonial home and therefore, the necessary ingredients for providing desertion are not available and consequently, the finding of the trial court in this regard deserves to be set-aside. It was prayed that the appeal be allowed and the judgment impugned be set-aside.

Vehemently, opposing the submissions, it was submitted by learned counsel for the respondent that from the material available on record, it was apparent that the appellant has deserted the respondent for a continuous period of two years immediately preceding the presentation of the petition and had no cause for doing so; the submissions made by learned counsel for the appellant seeking to allege that there was reasonable cause on account of the fact that the respondent lodged an FIR on 25.10.1993 alleging fraud against the petitioner is, in fact, seeking premium on the wrongs committed by her. It as further submitted that from the evidence available on record, the desertion is proved, inasmuch as, the appellant chose not to contest the petition after putting an appearance before the trial court; even after passing of the impugned judgment, application under Order IX, Rule 13 CPC filed by the appellant was also dismissed by the trial court on 19.1.1996 and therefore, the appellant has no cause.

It was submitted that the desertion is also proved from the very fact that the appellant did not take any steps for restitution of conjugal right, if she had any interest in restoration of the matrimonial home.

Further submissions were made that present is a typical case of irretrievable break down of marriage, inasmuch as, admittedly parties are living separately since 7.12.1991 i.e. over 25 years now and after passing of the ex-parte decree and dismissal of application under Order IX, Rule 13 CPC and before the respondent was served with a notices in the present appeal, the respondent had contracted another marriage and has a child from the said wedlock. It was prayed that the judgment passed by the trial court is justified and same does not call for any interference.

Further submissions were made that under the directions of this Court the respondent had already paid a huge sum of Rs.12,00,000/- towards permanent alimony and is prepared to pay further reasonable sum in this regard and therefore, the appeal filed by the appellant deserves to be dismissed.

Reliance was placed on Sujata Uday Patil v. Uday Madhukar Patil : (2006)13 SCC 272.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

During the pendency of the appeal, an application under Order XLI, Rule 27 CPC was filed by the appellant inter-alia for placing on record the copy of judgment dated 11.6.2008 passed by the Additional Sessions Judge No.2, Bikaner in Cr. Appeal No.2/2007 (State of Rajasthan v. Nandlal) and copy of the statement dated 18.10.2001 recorded in the criminal trial before the Court of Additional Civil Judge (Jr.Div.)-cum- Judicial Magistrate, Ist Class, No.2, Bikaner. In the said application, except for indicating that the documents came into existence during the pendency of the appeal, nothing has been indicated as to how the documents were relevant for the proper adjudication of the present appeal and even during the course of submissions in the present appeal, no reference was made to either the application and / or the documents annexed with the application. In view thereof, besides the fact that no submissions were made qua the application and documents, even otherwise, there is no substance in the application, the same is, therefore, dismissed.

The essential condition for proving the ground of desertion are (i) – factum of separation and (ii)- intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is concerned, (i)- absence of consent and (ii)- absence of conduct giving reasonable cause to spouse leaving matrimonial home to form necessary intention aforesaid. In the present case, the husband, in the petition seeking divorce alleged that on 7.12.1991 uncle of the appellant without permission took the appellant to Bikaner from Sardarshahar and whereafter, she did not return back to the matrimonial home till 25.10.1993 and continued to deny to live with the respondent at Sardarshahar. Efforts were made by the respondent and his close relatives before 25.10.1993 for bringing her back which was responded by counter proposal to the respondent to go and live with the wife at her parental home. It was also alleged that besides not returning back to the matrimonial home at Sardarshahar, the appellant did not visit the place where the respondent was serving, however, all the efforts made in this regard failed and it was apparent that the wife has deserted him. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

As already noticed herein-before, after service though the appellant put in appearance, whereafter as the counsel pleaded no instructions, the matter proceed ex-parte against the appellant and on behalf of the respondent, 04 witnesses were examined.

The respondent appeared as AW-1 and reiterated the contents of the petition. Further assertions were made that despite several efforts being made by the respondent and people of the Society, the appellant did not return back to the matrimonial home.

AW-2 Bharat Bhushan Arya, a lawyer by profession and Secretary of Mali Samaj, Bikaner and Vice President of Rajasthan Mali Samaj appeared in the witness-box and stated that despite efforts being made by the respondent, the father, uncle and aunty of the appellant did not send the appellant back to the matrimonial home. He tried to convince the appellant / parties to go back to the matrimonial home, which was rejected and it was suggested that the respondent should go and live with them.

AW-3 Banwari Lal, elder brother of the respondent also stated that uncle of the appellant took her to Bikaner from Sardarshahar and stated that the respondent can come and live with them, efforts were made to bring the appellant with them, the uncle of the appellant refused, efforts were made through Mali Samaj, however, that also did not succeed. AW-4 Rajendra, a neighbour of the respondent was examined, who also stated similar facts regarding uncle of the appellant taking her back to parental home and stated that the respondent can come and live with them.

From the material available on record as well as the submissions made by counsel for the parties, it is apparent that the appellant had left the matrimonial home on 7.12.1991 and despite the efforts made by the respondent, his family members and people of Mali Samaj, the appellant did not return back to the matrimonial home, on the other hand, it was insisted that in case, the respondent wants, he can come and live at the parental home of the appellant.

No submissions were made by counsel for the appellant to indicate that any efforts were made by the appellant to get back into the matrimonial home including filing of petition under Section 9 of the Act for restitution of conjugal rights.

So far as the submissions made by learned counsel for the appellant seeking to make out a case of reasonable cause in terms of second explanation to Section 13 is concerned, the said explanation reads as under:- “Explanation.- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

The submission made on behalf of the appellant is that from the dates indicated in the petition, whereby the appellant left the matrimonial home on 7.12.1991 and a FIR was lodged by the respondent alleging fraud on 25.10.1993 against the appellant, necessarily means that the atmosphere in the matrimonial home was such that it forced the appellant to leave the matrimonial home and therefore, she had a reasonable cause and therefore, the necessary ingredients as indicated in the explanation has not been fulfilled.

Besides the fact that no such plea was available before the trial court and consequently, there is no material available on record regarding the alleged reasonable cause for the appellant to leave the matrimonial home, it was the specific case of the respondent that as soon as he came to know of the fraud having been committed by the appellant, he lodged the FIR on 25.10.1993, this is not the case of the appellant that after the FIR was lodged that she left the matrimonial home and / or that the respondent came to know about the facts, which led to filing of the FIR even long prior to 7.12.1991 and the atmosphere was so poisoned that she have no option but to leave the matrimonial home. As the respondent has clearly indicated that the FIR was lodged on 25.10.1993 immediately on coming to know of the fraud on 25.10.1993, that cannot be a reasonable cause on 7.12.1991 for the appellant to leave the matrimonial home and therefore, the submissions made by learned counsel for the appellant seeking to plead reasonable cause for the appellant to leave the matrimonial home has no basis.

The ingredients of desertion as noticed hereinbefore i.e. factum of separation and intention to bring cohabitation permanently to an end are both proved and the defence as sought to be now projected in the appeal based on the available material having been found to be non-existent, the trial court was justified in coming to the conclusion that the appellant has deserted the respondent without any reasonable cause and was further justified in granting decree for dissolution of marriage between the parties. So far as irretrievable break down of marriage between the parties is concerned, the facts as noticed hereinbefore, are apparent wherein the parties are living separately for over 25 years now, after the decree for dissolution of marriage was granted by the trial court and the application for setting aside ex-parte decree was also rejected and before the notices of the present appeal were served on respondent, he had contracted marriage way-back in the year 1997 and therefore, the test laid down by the Hon’ble Supreme Court in this regard as to whether the marriage can be saved in the circumstances, the answer to the said aspect would be a big ‘No’.

So far as grant of permanent alimony is concerned, in the submissions made before the Court, though no submissions were made by learned counsel for the appellant, learned counsel for the respondent offered to pay reasonable sum towards permanent alimony to the appellant and also prayed that the fact that a sum of Rs.12,00,000/- has already been paid under the interim directions of this Court, direction can be given. Looking to the over all circumstances of the case, though apparently, no material is available on record for determination of amount of permanent alimony, in view of the fact that the respondent was working as C.I. In the Police Department as noticed in the order-sheet dated 19.8.2015 (supra), in the opinion of this Court ends of justice would meet in case, the respondent is directed to make payment of a further sum of Rs.6,00,000/- by way of permanent alimony besides the sum of Rs.12,00,000/- already paid by the appellant under the directions of this Court dated 19.8.2015 (supra). The amount be paid within a period of three months from the date of this judgment.

In view of the above discussions, the appeal filed by the appellant has no substance, the same is, therefore, dismissed.

However, the respondent is directed to make further payment of a sum of Rs.6,00,000/- to the appellant by way of permanent alimony within a period of three months and the order dated 19.8.2015 (supra) passed by this Court directing payment of a sum of Rs.12,00,000/- by way of part payment of permanent alimony is made absolute.

No order as to costs.

(ARUN BHANSALI), J.

rm/-

16 lakhs TOO little for UNCONSUMMATED marriage!! Maint. order sent back 13 years later by Patna HC

  • Marriage in 2003
  • Marriage unconsummated as per parties !
  • They seem to have separated just after a few months of married life !!
  • Husband obtained divorce at lower court and was also asked to pay Rs 16 Lakhs as alimony to wife !!
  • However wife appeals and says 16 Lakhs is too less
  • The Hon Patna HC dismisses that part of the lower court order (pertaining to maintenance) and sends it back for fresh adjudication !!
  • Since both wife and husband have NOT contested the divorce, the divorce is left as is !! meaning wife is free to even get re married !!

=============================================

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.450 of 2015

Reena Devi, aged about 34 years, wife of Sri Rohit Bishnoi, present resident of Mohalla – Jamtara, G.T. Road, Near Parasnath College, village + P.O. + P.S. – Dumri, District – Giridih (Jharkhand). …. …. Appellant

Versus

Rohit Bishnoi, son of Krishna Chandra Bishnoi, resident of Mohalla D.N. Das Lane, Bangali Akhara, Langar Toli, P.O. Bankipur, P.S. Kadamkuan, District & Town – Patna….. …. Respondent

With

Miscellaneous Appeal No. 271 of 2015

Rohit Bishnoi S/o Krishna Chandra Bishnoi Resident of Mohalla D.N. Das Lane, Bangali Aghara, Langar Toli, P.O. Bankipur, P.S. Kadamkuan, District Patna….. …. Appellant

Versus

Reena Devi W/o Rohit Vishnoi, D/o Om Shankar Agrawal Resident of Village Dumari Jamtara J.T. Road Near Paras Nath College, P.O. Dumari, P.S. Dumari, District Giridih (Jharkhand)….. …. Respondent

===========================================================

Appearance :
(In MA No. 450 of 2015)
For the Appellant/s : Mr. Manoj Kumar, Advocate For the Respondent/s : None.

(In MA No. 271 of 2015)
For the Appellant/s : None
For the Respondent/s : Mr. Manoj Kumar, Advocate

===========================================================

CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH And HONOURABLE JUSTICE SMT. NILU AGRAWAL

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)

Date: 06-09-2016

Heard learned counsel for the appellant in M.A. No. 450/2015. No one appears on behalf of the appellant in   M.A. No. 271/2015.

The two Miscellaneous Appeals arise out of the judgment and order dated 29.06.2015, passed by the Additional Principal Judge, Family Court, Patna, in Matrimonial Case No. 445 of 2010.

The case was instituted by Rohit Bishnoi, the husband, for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”). The sole contesting respondent, Smt. Reena Devi, was the estranged wife. Parties have appeared and led their evidence. The Court, upon consideration of the entire matter, granted the decree for dissolution of marriage by decree of divorce. While doing so, it noted that the parties were married on 06.03.2003, but within months there were serious differences, and since then, they have been living apart. The marriage has not been consummated, nor parties are inclined to forget the past and live together.

The two appeals that have been filed is against the part of the judgment, whereby and while granting the decree of divorce, the Family Court has granted Rs. 16,00,000/- (sixteen lacs) as permanent alimony in terms of Section 25 of the Act, to be paid by the husband to the wife.   Miscellaneous Appeal No. 450/2015 has been preferred by the wife challenging that permanent alimony, so fixed, is too little, whereas Miscellaneous Appeal No. 271/2015, as filed by the husband, is that, considering his status and his property, the alimony is strikingly high. Neither party had challenged the decree of divorce. Therefore, before us, the question is whether Rs. 16 lacs as fixed by the Trial Court is just and reasonable. The legal principles for fixing the permanent alimony are well settled and need not be discussed, but what is the evidence for the same is relevant. All that the wife can say is that the husband has a house in which there are some shops and live with parents on the first floor therein. Therefore, his status is very high and Rs. 16,00,000/- (sixteen lacs) is also very low. There is no evidence as to the valuation, or the other assets or the income of the husband. The husband, on the other hand, says that apart from the said property, which is old ancestral property, there is no income except rental income from those shops, and if he is asked to pay Rs. 16,00,000/- (sixteen lacs), he would first have to sell the entire property and then raise the money.

In our view, the first thing to be noted is that,  alimony has to be fixed upon cogent evidence to be led by the parties. It cannot be on ad hoc findings unsupported by materials on record.

In that view of the matter, there being hardly any evidence, we would set aside the matter and remand the matter to the Principal Judge, Family Court, Patna, only limited to the matter for determination of the quantum of alimony, in terms of Section 25 of the Act. So far as the decree of divorce is concerned, neither party having any objection, the same cannot be interfered with, and it would be deemed to have attained the finality.

Thus, both the appeals are allowed and the matter is remanded for fresh consideration by the Trial Court for the limited purpose as pointed out above. The Trial Court would be well advised to finalize the proceedings, preferably within six months.

(Navaniti Prasad Singh, J.)

(Nilu Agrawal, J.)

Rajeev/-

U

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

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


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. ….”


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 !!


  • 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