Statutory Period of six months can be waived in Mutual Consent divorce By Supreme Court of India,

 

Statutory Period of six months can waived in Mutual Consent divorce By Supreme Court of India,    

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Divorce by mutual consent is the fastest way or procedure of getting divorce in India. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year. Divorce by mutual consent is fastest because parties can get divorce in six months only and can be shortened if the parties are living separately since long time spam. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under under following Acts which very according to law applicable to parties:-

Sec. 13-B of The Hindu Marriage Act.

Sec. 28 of The Special Marriage Act.

Sec.10-A of The Indian Divorce Act.

The procedure for seeking a divorce by mutual consent is same under each Act, which is initiated by filing a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners present in Court, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required to reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, before filling petition are custody of child, alimony to wife, return of dowry items or “Istreedhan” and litigation expenses which should be mentioned in their petition for divorce by mutual consent,.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an inquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties

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 In The Matter of Amardeep Singh   Vs    Harveen Kaur     the Hon’ble Supreme Court held that:-                               …

It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:

  1. i)     How long parties have been married?
  2. ii)    How long litigation is pending?

iii) How long they have been staying apart?

  1. iv) Are there any other proceedings between the parties?
  2. v) Have the parties attended mediation/conciliation?
  3. vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

14 AIR 2010 Ker 157

The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably
broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as follows:

15 (2005) 4 SCC 480
“The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ “ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”

Applying the above to the present situation, we are of the view that where the Court dealing with a matter is
satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

  1. i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
  2. ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

  1. iv) the waiting period will only prolong their agony.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.
The parties are now at liberty to move the concerned court for fresh consideration in the light of this order.

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11158 OF 2017

(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)

Amardeep Singh                                              …Appellant

Versus

Harveen Kaur                                                …Respondent

 

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How and where I Can File my divorce Petition in India.

Instructions

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Hindu marriage joins two individuals for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksha (ultimate spiritual release) together. It is a union of two individuals as husband and wife, and is recognized by law.

The marriage tied their nuptial knot to bring about the union of souls. The marriage creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy, it is sanskar- sacrament, one of the sixteen important sacraments essential to be taken during one’s lifetime. As a result of marriage there may be physical union between the parties of the marriage for procreation of lineal progeny and for ensuring spiritual salvation and performance of religious rites but what is essentially contemplated is the union of two souls. Marriage is considered to be a junction of three important duties i.e. social, religious and spiritual

Divorce

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According to the Indian divorce laws there are mainly two ways to obtain you divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement and get a “no-fault divorce”. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-cast marriages under the Special Marriage Act, 1956.

Types of Divorce

Mutual Consent – Both the spouses are in agreement that divorce cannot be avoided and they both opt for a “no fault” Divorce.

Section 28. Divorce by mutual consent Under Special Marriage Act

mutual divorce

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the avertments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree

Section 13-B of Hindu Marriage Act,1955,

Divorce by mutual Consent.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976 , (68 of 1976 .) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that thy have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Contested Divorce – The spouse seeking divorce can file under the appropirate faith based law under which they got married or in case of civil marriage under the appropirate law under which they married or their marriage was registered.

Governing Laws

Hindus – The Hindu Marriage Act, 1955

Christians – The Divorce Act,1869, The Indian Christian Marriage Act,1872

Parsis – The Parsi Marriage and Divorce Act,1936

Muslims – Shariat Law, The Dissolution of Muslim Marriage Act,1939

Inter-cast/Secular – Special Marriage Act, 1954, The Foreign Marriage Act,1969

Major Grounds for Divorce

Adultery

Deserting the spouse for two or more years

Physical or mental cruelty

Conversion to another religion in case of religious marriage

Incurable disease such as leprosy, venereal disease in a communicable form

Insanity, unsound mind or mental disorder

Renounced the world by entering any religious order in case of religious marriage

Unheard of as being living for a period of seven years or more

Section 19 in The Hindu Marriage Act, 1955 (Jurisdiction to File Divorce Petition in India).

Court to which petition shall be presented. —Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

41 [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]

Jurisdiction of the Court If a marriage is solemnised at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation; Arjun Singhal v. Pushpa Karwel, AIR 2003 MP 189.

Divorce on ground of wife’s cruel behavior.

. It is settled legal position that making unfounded indecent defamatory allegations against the spouse or his relatives in the pleadings/complaints amount to causing mental cruelty. (Rel. (2014) 16 SCC 34 K. Srinivas Vs. K. Sunita).

It is a marriage which could not take off right from inception as the worst kind of mental cruelty was faced by the respondent/husband during his honeymoon and thereafter. All his efforts to save the marriage by arranging various meetings, visiting the parental home of the appellant/wife, agreeing to take a separate accommodation to keep her, statement by the mother-inlaw of the appellant/wife before CAW Cell that let them (parties to the marriage) live happily wherever they want, could not save this marriage. After she left the matrimonial home on April 03, 2004, for the last more than 12 years, she has been litigating not only against her husband and his family members but also do not hesitate to implicate the advocate for her husband in the criminal case as well Sh.Trilochan Singh, a neighbour of her husband.


MAT.APP. (F.C.) 68/2015 Page 1 of 17

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: September 22, 2016

% Judgment Delivered on: September 30, 2016

+ MAT.APP.(F.C.) 68/2015

 

ANU SETH ….. Appellant Represented by: Mr.S.K.Srivastava, Advocate with appellant in person.

versus

SUNIL SETH ….. Respondent Represented by: Mr.Kirti Uppal, Senior Advocate instructed by Mr.P.P.Tiwari and Ms.Sahiba Pantel, Advocates

 

. CORAM:

HON’BLE MR. JUSTICE PRADEEP NANDRAJOG

HON’BLE MS. JUSTICE PRATIBHA RANI PRATIBHA RANI, J.

  1. In the case of arranged marriages where both the spouses are in the age group of 30 plus, honeymoon period is the best time to know, understand and come close to each other. This case is an exception in the sense that just a day after the marriage the parties left for their honeymoon to Shimla and returned with bitter memories and a spoiled honeymoon.
  2. Before applying for dissolution of marriage on the ground of cruelty, the respondent/husband has shown exceptional patience in dealing with the problem inspite of facing humiliation and scandalous allegations being made against him and his family members. The case is also different in a way that after staying intermittently at the matrimonial home, within less than three months of the marriage, the appellant/wife left for her parental home and despite the respondent/husband repeatedly visiting and persuading her to join him, she served detailed legal notice making various accusations. MAT.APP. (F.C.) 68/2015 Page 2 of 17
  3. Before replying the legal notice, again the respondent/husband tried to resolve the issues through their counsel by assuring of a separate accommodation for her on the assurance that none from their respective family would interfere for 5-6 months during that period. Even that did not succeed.
  4. When the complaint before CAW Cell was filed on May 26, 2005, the respondent/husband while requesting for a copy of the complaint to properly reply the same the concluding lines written by him are that : ‘I again request the authority to make her understand that marriage is solemnised to form the family and not to destroy the sanskar of marriage please.

’ 5. The respondent/husband had to beat a hasty retreat when FIR No.763/2005 under Sections 498-A/406/34 IPC was registered on August 27, 2005 against him and his other family members including married sister and her husband (jija) and had to run for cover by applying for anticipatory bail. Unfortunately the counsel who applied and obtained anticipatory bail for the respondent/husband and his family from the Court of Law, was also in a soup when in a complaint under Domestic Violence Act, he was impleaded as respondent No.7 though he was in no way in domestic relationship with the appellant.

  1. The voluminous record in this case pertains to a marriage which lasted just for three months. The marriage was solemnised on January 31, 2004. The parties at the time of their marriage were quite mature. While the respondent/husband Sunil Seth was aged about 33 years, the appellant/wife Anu Seth was aged about 31 years at that time. Both are well qualified. The respondent/husband is employed in AIIMS as UDC and the appellant/wife is Graduate and also having vocational skills i.e. Diploma in Boutique Embroidery. MAT.APP. (F.C.) 68/2015 Page 3 of 17

 

  1. The differences started just a day after when the parties went to Shimla for their honeymoon on February 02, 2004. The reasons given by the parties for the unpleasant honeymoon are: (i) As per the respondent/husband, the appellant/wife did not allow him to consummate the marriage and tried her best to avoid him in the process. Not only that, she even threatened to commit suicide if he dare touch her body against her mood, willingness and consent. (ii) The appellant/wife’s stand is that while in Shimla the respondent/husband, who is short tempered and behaves cruelly and gets irritated if anything is said or done against his dictates, declared that the status of a lady in their family is that of ‘a sandal in a foot’ and his words to be treated as God’s words, an averment which did not find mention in the detailed legal notice sent by her on March 14, 2005.
  2. It is admitted case of the parties that after honeymoon when they returned to Delhi, the relationship was unlike a newlywed couple. The appellant/wife had been visiting her parents frequently. However, it is admitted case of the parties that they were behaving normally when both of them were together in Dehradun at the alleged Grehpravesh ceremony at the house of sister of the appellant/wife as well at Hoshiarpur to perform some puja at the behest of the appellant/wife of Mataji at Hoshiarpur i.e. spiritual Guru of wife’s family. Despite puja being performed by the parties at the behest of the appellant/wife and her parents, Mataji did not permit her to join the matrimonial home. It is admitted case of the parties that the appellant/wife left the matrimonial home on April 03, 2004 alongwith her parents at about 11.00 am. It is also not disputed that on April 05, 2004 the respondent/husband visited his wife to bring her back. Thereafter when she served a legal notice, efforts to reconcile were made by him through MAT.APP. (F.C.) 68/2015 Page 4 of 17 respective advocates by holding chamber meetings. Private meetings between the two families to iron out the differences are also admitted by the parties.
  3. Litigation started when the appellant/wife filed a complaint on May 26, 2005 before CAW Cell and FIR No.763/2005 under Section 498-A/406/34 IPC was registered on August 27, 2005 against the respondent/husband and his family. The appellant/wife has also filed a complaint under Domestic Violence Act in January, 2007 wherein sister-inlaw (jethani) and Mr.Kehar Singh, Advocate for the respondent/husband in bail application were not even spared. A maintenance petition under Section 125 Cr.P.C. was also filed by the appellant/wife in January, 2007.
  4. On not being able to make her agreeable to join him, the respondent/husband filed divorce petition bearing HMA No. 1327/14/05 on the ground of cruelty which has been vigorously contested by the appellant/wife.
  5. Perusal of the impugned judgment shows that by referring to the contradictions in the testimony of the witnesses, she also filed application under Section 340 Cr.P.C. which has also been dismissed vide impugned judgment.
  6. Not only that PW-4 Sh.Trilochan Singh – a neighbour who mustered the courage to appear in the Court to depose what he had witnessed on April 03, 2004 when the appellant/wife finally left the matrimonial home in the company of her family members after allegedly creating a scene in the area was taken to task by her. PW-4 Sh.Trilochan Singh was served with the following notice by her through counsel in respect of the statement made by him before the Family Court:- ‘TRILOCHAN SINGHOCTOBER 20, 2008 SON OF LATE S. KIRPAL SINGH MAT.APP. (F.C.) 68/2015 Page 5 of 17 39A, OLD SAHIBPURA, BHUPINDER SINGH NAGAR TILAK WaGAR, NEW DELHI Sir, I am legally wedded wife of Shri Sunil Seth, your neighbour. In the divorce-petition filed by my husband in the court of Shri P.K. Barthwal ADJ, Delhi, you appeared as witness of my husband, on 04- 09-2008 as PW 4. You had filed your affidavit dated 19-12-2007 in examination in chief. In paragraph 3 of the affidavit you stated that “I say that during the last week, o n Sunday of October 2004 about noon, the respondent along, with her parents and one person came to the house of the petitioner, they misbehaved with the family members of the petitioner and created a scene by shouting while standing on the road in front of my house and later on they went along with two suitcases. When the mother of the petitioner tried to pacify the matter, she was pushed and misbehaved very badly by the respondent.” WHEREAS in cross examination you stated that “No scene had been created outside my house. I had not witnessed any manhandling or scuffle at that time.” From the above it is clear that you, in order to support the case of my husband have deliberately, intentionally and knowingly deposed in the court falsely and misled the Hon’ble Court for which I intend to file petition under section 340 Cr.P.C. and other related sections. I call upon you to send reply to my letter. In your deposition, you named one Mrs.Gogi and Mr.Balwinder Singh, her husband but have not given- their address. I have inquired and came to know that there is no neighbour of my husband namely Mrs.Gogi and Mr.Balwinder Singh. I request you to send me the addresses of Mrs.Gogi and Mr.Balwinder Singh as I want to. call them in Court for deposition because you have informed all wrong things, to the Court. I hope you will reply my this letter otherwise I shall file application in MAT.APP. (F.C.) 68/2015 Page 6 of 17 the Hon’ble court for appropriate action, under the law. (ARCHITA@ANUSETH) wife of Shri Sunil Seth H – 46, G.S. Apartments Sector-13, Rohini Delhi-110 085 C.C. – Shri Sunil Seth, with request to ask Mr. Trilochan Singh to furnish the required information in reply to my letter.’
  7. Written submissions have been filed by the parties mainly referring to the various discrepancies appearing in the statement of the witnesses and the evidence adduced by the parties.
  8. With a view to satisfy our judicial conscience about the correctness of the decision rendered by the Family Court granting divorce to the respondent/husband on the ground of cruelty, we will be examining only the following four incidents: (i) Filing criminal case in January, 2007 under Domestic Violence Act after about two years and nine months of leaving the matrimonial home in April, 2004 implicating her jethani Hemlata and Sh.Kehar Singh, Advocate, who represented her husband in bail matter by making false allegations. (ii) Malicious, scandalous and defamatory allegations made by the appellant/wife in the legal notice Ex.PW1/4 dated March 14, 2005 against her husband, mother-in-law, brother-in-law (jeth), married Nanand and Nandoi. (iii) Various threats being extended to the husband and his family to falsely implicate them to the extent that he was constrained to repeatedly report the matter to the police vide DDs Ex.PW2/1, Ex.PW3/1 & Ex.PW3/3. (iv) Making false allegations of dowry demand and demand of a car by the husband and in-laws. MAT.APP. (F.C.) 68/2015 Page 7 of 17
  9. Since all the contentions, as referred to the written submissions by the parties, have been dealt with by the learned Judge, Family Court in the lengthy judgment running into 86 pages, we will not repeat the same exercise by re-examining each and every accusation made by the parties against each other and their family members or the contradictions appearing on some aspects in the testimony of the witnesses.
  10. The accusations made above by the appellant/wife against her husband and in-laws have not been substantiated by any oral or documentary evidence.
  11. Perusal of certified copy of the Criminal Complaint Case No.66/1/07 filed on January 08, 2007 filed under Domestic Violence Act reveals that Sh.Kehar Singh Advocate has been impleaded as R-7 though he is not related to the parties. In the said complaint case, she levelled allegations against all the respondents about dowry demands being made and not bringing a car in dowry. She again referred to 3-4 marriages being performed by her jeth (R-3). Sh. Kehar Singh, Advocate was constrained to serve the appellant/wife with a legal notice through Sh.Prem P.Tiwari, Advocate demanding compensation of ₹10 lacs mentioning therein about the professional services rendered by him by filing anticipatory bail application on behalf of his clients namely Sunil Seth (respondent/husband) his mother Raj Seth, brother Anil Seth as well on behalf of Smt.Seema Rao and Sh.Balwant Rai (married Nanad and Nandoi) in case FIR No.763/2005 under Section 498-A/406/34 IPC, PS Prashant Vihar, which was granted. Para 4 of the notice by him served upon the appellant/wife reads as under:- “4. That you, feeling aggrieved with the professional obligations and duties discharged by my aforesaid client towards his abovesaid five clients, implicate him as a co-accused at serial No.7 in the complaint filed by you under Section 12 of Protection of Women from Domestic Violence Act, 2005 for the grant of relief under Section 18, MAT.APP. (F.C.) 68/2015 Page 8 of 17 19 (i) (f), 20 and 22 of the said Act, with malafide intentions and ulterior motives to cause harassment and tarnish the image of my client at the Bar and in the society. You have intentionally and deliberately dragged my client in the aforesaid complaint without any basis under the Protection of Women from Domestic Violence Act, 2005 which is now pending in the Court of Ms. Rekha, M.M. Rohini Courts, Delhi. In the said complaint all the allegations made by you against my client are totally false, frivolous, baseless, concocted and afterthought. My client has nothing to do with the allegations levelled by you in the said complaint against my client. It is submitted that my client has already submitted a detailed reply to the said complaint and has denied all the allegations in toto.”
  12. The legal notice Ex.PW1/4 dated March 14, 2005 sent by the appellant/wife which was addressed to (1) Sh.Sunil Seth, Husband; (2) Mrs.Raj Seth, Mother-in-law; (3) Mr.Anil Seth, Jeth; (4) Mrs.Simmy Rai, married Nanad; and (5) Mr.Balwant Rai, Nandoi. The relevant paragraphs of the said legal notice read as under:- “Paragraph No.3 “…….that the addressee No.3 have already left 3 wife and is now having 4th spouse namely Smt.Lata Seth. Smt.Lata Seth has been kept in dark to this effect for the reasons best known to you the above addressees. That you the addressee No.4 insisted for an Air conditioned car after the solemnisation of marriage on the pretext that addressee No.2 despite being widow has given 2 wheelar (sick wheeler) in the marriage of addressee No.4.” Paragraph No.10 “That you the addressees No. 2-4 & 5 have got no consideration of social values and are adament (sick adamant) to ruine (sick ruin) the mental peace and married life of my client. The addressee No.3 who is elder brother-in-law (Jeith of my client attempted to maline (sick malign) the modesty of my client but my client saved her sancitity (sick sanctity) from the ill attempts and designs of addressee No.3. My client brought to the knowledge of this incident to addressee No.1 but he ignored the same by saying that such things are common in their family and rebuked my client.” MAT.APP. (F.C.) 68/2015 Page 9 of 17 Paragraph No.11 “That my client was harassed and humilated (sick humiliated) as well as physically and mentally by you all the addressees and compelled her to leave the matrimonail (matrimonial) home on 3.4.2004. Thereafter you the addressees No.2, 4 & 5 insisted my client to have divorce from the addressee No.1 so that the marriage of the addressee No.1 can be solemnised in a rich family. My client in order to collect some clothes went to the matrimonail (sick matrimonial) home on 4-5- 2004 and found that the steel almirah in not openable condition by its key. A key maker person was called who some how managed to open the almirah who stated that almirah’s lock have been damaged by some one, after opening the almirah it was to the utter surprise of my client that clothes, suits, sarees etc. were missing, the above addressees despite being asked avoided to give any reply and made my client a laughing stock, my client could not bear and returned back.”
  13. The respondent/husband has sent the reply Ex.PW1/5 dated May 02, 2005 wherein before replying to the accusations made in the legal notice, he has given the details of the various meetings and the proposed settlement terms which were initially agreed by the parties but subsequently she backed out on the issue of no interference by her family members at least for a period of six months in a rented accommodation.
  14. The two cases filed by the appellant/wife i.e. petition under Section 125 Cr.P.C. and petition under Section 12 of Domestic Violence Act have been dismissed. In the above proceedings in her cross examination the appellant/wife has admitted the following facts: Cross examination of Smt.Archita, petitioner dated 10.08.2011. “……It is correct that on 05.04.2004 my husband came to take me back in the matrimonial home but I refused. Vol. Because my husband had stated that his mother does not want to see her face and I want to take you in the rented accommodation because he has not taken any rented accommodation………” MAT.APP. (F.C.) 68/2015 Page 10 of 17 Cross-examination of Smt.Archita, petitioner dated 14.10.2011. “I stayed in my matrimonial house from 1.2.04 till 3.4.04. I went for 2-3 days to Hoshiarpur with my husband for puja. I went to Honeymoon to Shimla from 2.2.04 to 07.02.04. It is correct that I had visited Dehradun at the place of my elder sister house from 28.3.04 till 30.3.04 along with my husband. It is correct that behavior of my husband was alright in the trip to Hoshiarpur and Dehradun but it is incorrect that his behavior was correct on our honeymoon. I have already mentioned about his misbehavior in honeymoon trip in my petition. It is correct that my husband had visited my parental home on 5.4.04 in order to take me along with him and he also came to take me on 13.2.05. It is wrong to suggest that respondent requested me with folded hands to accompany him but I refused. It is correct that before filing of litigation by either party efforts were made by the side of the respondent and his counsel to talk to me, my parents and my counsel for compromise of the matter. It is correct that on 23.3.05 respondent had offered me to take a premises on rent near his office ie AIIMS if I am ready and willing to live with him. It is also correct that when it was discussed that respondent will take premises on rent near AIIMMS it was also discussed that parents of both parties will not visit that home for about 5 months or 6 months. It is wrong to suggest that a fresh meeting was called on 31.3.05 for finalizing the compromise where my father refused to send me in rented accommodation. It is wrong to suggest that despite deciding that parents of both parties will not interfere in their lives my parents had interfered in our life. It is wrong to suggest that after meeting of 4.4.05 another meeting was called on 12.4.05 for settlement of the dispute. It is correct that in a petition filed by me before Hon’ble High Court of Delhi in 2009 I had admitted that I am still ready and willing to live with my husband. Q: I put to you that although you filed FIR against respondent u/s 498A/406 IPC but still you are willing and ready to live with him. Does it mean that your allegations are incorrect? Ans: I want to live with my husband as he has never demanded anything directly from me or my parents. I had filed the case of 498A against him and his family on the ground that whenever my mother in law and sister in law used to demand anything my husband (respondent) used to remain silent. Within two months of living with him I could not have understood his nature completely. MAT.APP. (F.C.) 68/2015 Page 11 of 17 It is wrong to suggest that whenever my husband had tried to take me with him I had refused on the ground that till the time Puja (Mataji) of our Guru in Hoshiapur is done and she allows me to go I will not go with him. It is wrong to suggest that I have submitted so in my statement in case before Ld. MM dealing with DV case. It is wrong to suggest that whenever my husband approached to take me with him my parents and my family members threatened him by saying that they have approached to higher levels and respondent will have to face the consequences. I had not stated before any Court that I do not want to go with my husband. At this stage witness is confronted with certified copy of her statement EX. PW-1/RX given on 15.09.10 in the case had not stated before any court that I do not want to go with my husband. At this stage witness is confronted with certified copy of Archita vs Sunil in D.V. Case from point A to A………….” “……….. It is correct that husband had never demanded car from me. Vol but he has demanded car from my father when he met him in India Gate meeting. I had inquired from the office of elder brother of respondent about his various marriages, I came to know from Mr Jain who is owner of Enkay Rubber co. that brother of respondent had married 3-4 times………..” Cross-examination of Archita, Petitioner dated 16.11.2011 “I have stated before the Hon’ble High Court in my petition that I am ready to live with my husband without any pre-condition. Just immediate after my marriage, I had gone to my matrimonial home. I was happy with my husband in my matrimonial home. My husband is not smoking or drinking. Respondent had never beaten me and I am confident that I will live happily with my husband in the matrimonial home. My mother in law has also stated in writing in CAW Cell to wish the couple to live happily………..”
  15. In the complaint case bearing No.66/1/07 filed under Section 12 of Domestic Violence Act the appellant/wife impleaded her jethani Hemlata also as respondent despite the fact that prior to that there was no accusation against her in any regard. We have already noted that even Mr.Kehar Singh, Advocate who was a counsel at the time of seeking anticipatory bail was MAT.APP. (F.C.) 68/2015 Page 12 of 17 impleaded as respondent. The petition under Section 12 of Domestic Violence Act has been dismissed on April 29, 2016 for the following reasons: “8. Considering the testimony of complainant which has many contradictions, at one stage complainant has admitted that no act of cruelty committed upon her and that she had cordial relationship with the respondent till she resided at the matrimonial house. It is also admitted by her that incident of Tatapani were not raised in the petition under Section 125 Cr.P.C. and has been raised first time in the present petition. 9. With respect to respondent no. 2 to 7, there is no specific allegation either in the complaint nor in the petition filed by the complainant. With respect to respondent no.2 only allegation has been made that she had demanded AC car and gold bangles and the allegations are undated and not specific despite her short stay at her matrimonial house. Accordingly, complainant has failed to prove that she is an aggrieved person qua respondents no. 2 to 7. 10.With respect to respondent no.1 she has also admitted that only grievance against respondent no. 1 is that he has filed several complaints against her family and threw her against the wall on 03.04.2004, however the said allegations neither mentioned in the affidavit in evidence nor in the petition showing that it is an afterthought.” 22. Vide order dated May 07, 2015 the Petition No.202/2014 filed under Section 125 Cr.P.C. by the appellant/wife was dismissed inter-alia for the following reasons: “40. The petitioner has failed to show that she has sufficient cause for living separately and therefore, is not entitled to any maintenance u/s 125 Cr.PC in any case, she is a graduate and vocationally qualified, but if she chooses to while away her life in motivated prosecution, the respondent cannot be burdened to make payment for such sadistic conduct of the petitioner. Therefore, it is held that the petitioner is not entitled to any maintenance from the respondent. Issue no.1 is accordingly, decided in favour of the respondent and MAT.APP. (F.C.) 68/2015 Page 13 of 17 against the petitioner. ISSUE No.2 RELIEF 41.In view of my findings above on issue no.1, the petition of the petitioner u/w 125 Cr.PC is dismissed. No orders as to costs.”
  16. In the affidavit Ex.RW1/1 by way of evidence filed by the appellant/wife in HMA Petition No.771/2006 her version in paras 20, 23, 26 to 28 is as under:- “20. I also state that at the instance of my husband, my father and brother met the petitioner at India Gate and during the course of meeting my husband, his sister and her husband raised vague and indefinite issues and made false allegations against me. My husband further stated that he finds it difficult to go to his office without car and my father declined to fulfil the said demand of A.C. Car. The sister of the petitioner openly asked my father that in case they are not ready to fulfil the said demand, they would break the marriage as her elder brother had married four times and there was no problem in getting divorce as her brother got divorce two-three times from the court and they are acquainted with the process of the court.”

“23. I also state that on 22.11.2004 at about 8 PM or on 10.1.2005 at 6.45 as alleged or otherwise, I, my father and my brother met the petitioner and his brother and misbehaved with them by using derogatory and filthy language and/or threatened. I also state that the petitioner is a very clever person who in order to create evidence against me is misusing the process of law and has been accustomed to lodge false report with the Police Station with ulterior motives and till date no action has been taken by the police against me or my family members considering the complaint to be false and baseless.” “26. I further state that I have been deserted by my husband without any reasonable cause and excuse and forgetting about the happening of the past, I am ready to join my matrimonial home provided my husband assures me of the affectionate attitude and proper living at the matrimonial home. MAT.APP. (F.C.) 68/2015 Page 14 of 17 27. I state that the FIR bearing No.763/2005 was got registered by me for the valid and cogent reasons being the fact that I was treated with utmost cruelty on account of non fulfillment of dowry demands inasmuch as the behaviour of my husband and his family members caused mental and physical cruelty to me, resulting into ruining my life. 28. I further state that I have also filed an application U/s.125 Cr.P.C. alongwith an interim application for maintenance, besides the filing of the petition U/s.12 of the Domestic Violence Act, and the same are pending adjudication before Ms.Shunali Gupta, M.M. Delhi. The certified copies of both the petitions are Ex.RW-1/9 and RW- 1/10 respectively.”

  1. So far as various threats being extended to the respondent/husband and his family members to implicated them in a false case are concerned, DD No.23A dated October 05, 2004 marked as Ex.PW3/1 was recorded at the instance of the husband at 6:15 PM at PS Rajouri Garden about threat being extended by his wife at Vishal Cinema as well the threats earlier being extended for the previous six months on phone by the appellant/wife and her father that by using political influence they would ruin the respondent/husband and complaints would be made against him in the women cell. DD No.27 dated November 22, 2004 at PS Rajouri Garden Ex.PW3/2 is about threats given to the husband at Bikaner Sweets by the father and brother of his wife to ruin him and his family. The third report was registered vide DD No.18A dated January 10, 2005 at PS Tilak Nagar marked as PW-2/1 whereby he was asked either to pay `5 lakhs or he and his entire family would be implicated in some case/CAW cell.
  2. It may be noted here that demand of air conditioned car was earlier attributed to only Smt.Seema (married Nanad) in the legal notice Ex.PW1/4 dated March 14, 2005 whereas during trial of HMA Petition No.771/2006 MAT.APP. (F.C.) 68/2015 Page 15 of 17 this demand was made by her husband from her father and during the meeting at India Gate where she was not even present

. 26. The appellant/wife has also placed on record the transcript Ex.RW1/5 of the conversations dated 05.05.2004, 30.06.2004, 20.12.2004, 19.03.2005, 18.05.2005, 25.07.2005, 27.07.2005, 09.09.2005 and 23.01.2006 between the parties/family members.

  1. The learned Judge, Family Court has referred to this conversation in paras 69 and 72 to 85 of the impugned judgment. After referring to the above telephonic conversation which was consciously recorded by the appellant/wife or at her instance without other party being aware that the conversation between the two is being tape recorded to be used in litigation, was still found lacking in proving the plea taken by the appellant/wife or the accusations made by her against her husband and in law. Referring to the conversation, in para 69 finding has been returned by the learned Judge, Family Court that the appellant/wife left the matrimonial home of her own with her family member.
  2. The allegations repeatedly made in the legal notice, written statement and other proceedings against jeth that he tried to molest her and that when it was brought to the notice of the husband, he said that it was a family culture, remained unproved. The allegation made that the jeth had married 3-4 times also remained unproved. When his wife appeared Hemlata in the witness box as PW-3, no such question was put to her. The admissions made by the appellant/wife during her cross examination in the proceedings under Domestic Violence Act extracted above shows that it was not a case of dowry demand. The meeting at India Gate on October 03, 2004 when she claimed that the car was demanded by her husband from her father is falsified from her own version recorded in the criminal cases filed by her. MAT.APP. (F.C.) 68/2015 Page 16 of 17 Otherwise also it is highly improbable that after so many meetings in Lawyer’s chamber, at personal level and other places and lot of bitterness being created after she finally left on April 03, 2004, the husband could have demanded a car from her father during meeting at India Gate fixed to save the marriage. One thing is clear from this admission of the appellant/wife that prior to that there was no demand of car though false allegation was made about this demand in the legal notice dated March 14, 2005.
  3. In view of above admitted position as well judicial findings in the cases filed by the appellant/wife herein, the respondent/husband was able to establish that during their honeymoon not only consummation of marriage was resisted by her, even thereafter causing embarrassment and humiliation accusations have been made against him and his entire family. The allegations made against his elder brother by the complainant that he tried to molest her by way of serving a legal notice and also filing complaints implicating not only the husband but his entire family including his married sister and brother-in-law as well his counsel, with a motive to harass them, is nothing but a ruthless act on the part of the appellant/wife to cause mental cruelty and harassment to her husband and his family. It is settled legal position that making unfounded indecent defamatory allegations against the spouse or his relatives in the pleadings/complaints amount to causing mental cruelty. (Rel. (2014) 16 SCC 34 K. Srinivas Vs. K. Sunita).
  4. From the admissions of the appellant/wife during her cross examination, we have no hesitation to hold that the respondent/husband and his entire family had been subjected to worst kind of mental cruelty by the appellant/wife in this case. In all judicial proceedings, her projection as a victim at the hands of her husband and in-laws or being subjected to cruelty has been disbelieved. The learned Judge, Family Court had given valid MAT.APP. (F.C.) 68/2015 Page 17 of 17 reasons for dissolution of marriage on the issue of cruelty by discussing each and every contention thread bare in the impugned judgment.
  5. It is a marriage which could not take off right from inception as the worst kind of mental cruelty was faced by the respondent/husband during his honeymoon and thereafter. All his efforts to save the marriage by arranging various meetings, visiting the parental home of the appellant/wife, agreeing to take a separate accommodation to keep her, statement by the mother-inlaw of the appellant/wife before CAW Cell that let them (parties to the marriage) live happily wherever they want, could not save this marriage. After she left the matrimonial home on April 03, 2004, for the last more than 12 years, she has been litigating not only against her husband and his family members but also do not hesitate to implicate the advocate for her husband in the criminal case as well Sh.Trilochan Singh, a neighbour of her husband.
  6. We are of the considered opinion that the conduct of the appellant/wife in the instant case was such that it was not possible for the husband to bear such type of cruelty

. 33. The appeal has no merits and the same is hereby dismissed.

  1. No costs.
  2. LCR be sent back alongwith copy of this order.

PRATIBHA RANI (JUDGE)

PRADEEP NANDRAJOG (JUDGE)

SEPTEMBER 30, 2016 ‘st’