Divorce on grounds of desertion.

“ It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.”

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IN THE HIGH COURT OF DELHI AT NEW DELHI

MAT.APP.(F.C.) 82/2014

MRS. NISHA RANI                                              ….. Appellant

 

versus

  1. SOHAN SINGH NEHRA ….. Respondent

CORAM:

HON’BLE MR. JUSTICE PRADEEP NANDRAJOG

HON’BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

  1. The parties were married on April 23, 2000 in New Delhi in accordance with Hindu rites and ceremonies, but unfortunately could not go along well, the appellant having left the matrimonial home on September 06, 2003 to live with her parents. Her leaving the matrimonial home on September 06, 2003 was considered an act of desertion and cruelty by the learned Trial Court and hence a decree of divorce dated November 11, 2013 was granted to the husband/ respondent by the learned Judge, Family Court, Dwarka, New Delhi. It is against this decree the appellant-wife has filed this Matrimonial Appeal (Family Court) No.82/2014 and has challenged the impugned judgment.
  2. Briefly stated the facts are that the respondent/husband had filed a divorce petition HMA No.444/2009 (though originally filed before Faridabad Courts and pursuant to the order of the Hon’ble Supreme Court dated February 26, 2010 the petition came to be transferred to Delhi Courts) against his wife alleging his life being made miserable by his wife, she being quarrelsome; always insisting of separation from her in-laws; did not provide him food in time and made his life a hell. On February 14, 2002, the appellant gave birth to a child, who unfortunately expired on February 16, 2002 and she held the respondent responsible for his death and demanded ₹5,000/- as compensation; she used to leave the matrimonial home without his consent on pretext of joining some computer classes; and finally left the matrimonial home with her parents on September 06, 2003 in his absence taking away all her dowry articles and that he lodged DD No.25A dated September 11-12, 2003 with Police Post No.3, NIT Faridabad, Haryana. The husband / respondent also alleged that on April 03, 2004, a daughter namely Tina was born and all her delivery expenses were borne by him and since then he has been visiting the house of the appellant herein requesting her to return to her matrimonial home, but to no avail. The husband / respondent also alleged that on September 08, 2003 he filed a Divorce Petition No.24/2013 in Faridabad Courts, but since she gave an assurance to join him, he withdrew the said petition on January 19, 2004, but yet again the appellant failed to join his company. On June 13, 2004 he convened a Biradari Panchyat, but the appellant did not accept its advice and insulted him in the presence of the panchyat members and rather filed FIR No.477/2005 under Section 498A/ 406 of the IPC at police station Dabri, Delhi. The respondent further alleged that at the advice of the learned Court, he tried to patch up the matter and on January 05, 2006 went to her parents house to bring her back, but was abused and kicked and that he reported the matter to SHO, Dabri, Delhi.

 

  1. The appellant herein denied allegations made in the divorce petition and rather alleged that she was always been treated as an intruder / maid servant by the family members of her husband; was cursed, abused, scolded and her husband used to slap her in the presence of all to denigrate her. The appellant denied that she ever took away any of her articles and rather such articles, excluding jewellary, were returned by her husband before CAW Cell, Nanakpura, Delhi on January 17, 2005. She alleged that respondent has been demanding money on various occasions and her father gave ₹50,000/- towards cost of construction of a house purchased by the respondent, but he was not satisfied; she further alleged that she was harassed and beaten even when she was in family way and that on January 25, 2002, he threatened her to leave him and she had to move to her parents house in an advance stage of pregnancy where her child died; the respondent came to visit her after about 15 days only to blame her for killing their child. He did not pay a single penny towards delivery expenses of ₹30,000/- which were rather spent by her parents. The appellant further alleged that on September 06, 2003 she was again beaten in the morning by her husband; she called her parents and when they arrived, he ran away on seeing them and returned about half an hour later with two person only to abuse the appellant herein and her parents. Her parents then brought the appellant to Delhi. On April, 03, 2004 the respondent came at Delhi under the pressure of his relatives when she had delivered a baby girl but returned on April, 04, 2004 leaving her with her parents; that she is residing with her parents since September 06, 2003, she fear for her life as had suffered domestic violence and it was not possible for her to live with her husband in the given circumstances and that her husband had rather deserted her by his conduct and is not entitle to a decree of divorce.
  2. Both the parties examined themselves in evidence. The learned Judge, Family Court though disagreed with the respondent on various issues viz (a) the appellant ever used to taunt him on petty issues; (b) the appellant has ever pressurized him to live separately from her in-laws; (c) she ever failed to prepare food for him, as alleged; (d) or he was ever abused by the mother of the appellant at the time of death of their first child; (e) or she ever used to leave the matrimonial home without his consent on the pretext of joining computer classes; or (f) she ever abused him in the presence of his landlord at SGM Nagar, Faridabad; as no specific dates or events were disclosed by the respondent/husband either in his petition or in his evidence; and his allegations being generalized statements. The learned Judge, however granted a decree of divorce, primarily, on the grounds (a) the appellant herein admittedly left the matrimonial home on September 06, 2003 and the allegation that she was mercilessly beaten was difficult to digest in the absence of medical record, she being pregnant. The Court disbelieved that her husband ran away on seeing her parents only to return with two person to hurl abuses upon her and her parents. The learned Family Judge rather held that the appellant had left the matrimonial home on September 06, 2003 without any cause and since had failed to join the company of her husband despite his repeated requests has committed cruelty upon him by denying him the matrimonial bliss. Secondly, the learned Judge accepted the fact that on April 13, 2004 a Biradari Panchyat was convened by the husband – respondent at the residence of the appellant in Delhi; but she did not accept the advice of the Panchyat and rather slapped the respondent in the presence of panchyat members and since no suggestion was put by the appellant of not having a Panchyat on April 13, 2004 or of not slapping her husband in presence of such members it was an act of cruelty. Lastly, when on January 05, 2006 respondent husband went to the house of her parents with Rishi Pal and Ram Kumar, he was abused and kicked by the mother of the appellant. The learned Judge Family Court held that these three incidents caused cruelty to respondent and granted him divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955. Further, the learned Judge Family Court also held that the appellant herein had left the matrimonial home without any reasonable cause with a requisite intention of bringing the marriage permanently to an end and had failed to join the company of her husband despite his repeated efforts and thus committed the act of desertion, hence petition was also decreed under Section 13(1)(ib) of Hindu Marriage Act.

 

  1. We have heard learned counsel for appellant and have gone through the evidence.

 

  1. Admittedly, the learned Judge, Family Court did not believe the allegations of respondent against the appellant herein that she being a quarrelsome lady was ever forcing him to live separately from her in-laws; or was taunting him on petty issues; or ever refused to cook food for him; or ever abused her husband at the time of death of their first child or threatened to implicate him in false cases; or ever left the matrimonial home without his consent to join the computer classes; or ever abused him in the presence of his landlord at SGM Nagar, Faridabad, but the learned Judge was so overawed of her leaving the matrimonial home on September 06, 2003 without the consent of her husband that he made it a basis for cruelty and desertion by the appellant. A bare perusal of the evidence of the parties, however, would reveal the story otherwise.
  2. Desertion is not a withdrawal from a place, but from a state of things. It is the repudiation by one of all obligations of marriage. It is the abandonment of one spouse by the other without any reasonable cause and without consent of other. Now let us examine if the appellant herein left the matrimonial home on September 06, 2003 without any reasonable cause or was she compelled to leave her home. The incident dated September 06, 2003 is though relevant but is not to be seen in isolation. We need to understand the background to weigh her intention in leaving her matrimonial home. The appellant in her reply to divorce petition as also in her evidence-affidavit Ex.RW1/A had deposed that she was always harassed, humiliated, tortured by her husband / respondent and that he was rude; used to beat her and that even on January 25, 2002 he had threatened to burn her if she does not leave the matrimonial home forthwith and that in order to save her life, she left the matrimonial home at about 06.00PM of January 25, 2002 in advance stage of pregnancy and had reached her parents at Delhi in bare three clothes. She further averred that the respondent did not provide her good diet or medicine and that her first child was born by caesarian operation on February 13, 2002 though expired on February 14, 2002 but despite the respondent being informed about the time of delivery and of death of her child, neither he nor his family members came to see the appellant or her child. The respondent visited her after 15 days only to blame the appellant that she is the one who had killed the child. Now, to find the truth qua her allegations, we need to refer to the cross-examination dated July 04, 2013 of the respondent as PW1 wherein he deposed that the appellant had told him that she was a burden on her parents and would not leave the child as a burden on them and as the child died within 24 hours he blamed the appellant that she has killed the child. Now, making such allegation to a mother whose child had expired a few days before, would rather be a cruelty upon her when admittedly the appellant was still bed ridden, the child being born through a caesarian operation. The respondent rather insulted his wife who was under intense trauma on death of her first child. This admission of respondent rather reveal the helplessness of the appellant-wife.
  3. Now, in the light of above, we need to examine the incident dated September 06, 2003. The appellant herein in her affidavit Ex.RW1/A had deposed that that despite she being pregnant again was given beating by her husband on September 06, 2003. She called her parents by telephoning them and on seeing her parents the respondent ran away from the house and had returned with two person after about half an hour only to abuse the appellant and her parents. Her parents could not tolerate this behavior and brought the appellant to Delhi. While leaving the house her parents had requested the respondent to give her clothes but he refused.
  4. The respondent (PW1) when was cross examined, admitted that on September 06, 2003 the parents of the appellant had visited his house but he went away to buy vegetables and when he returned later in the day, the parents had already left. Though he denied that he ran away from his house but admittedly had left his house allegedly to buy vegetables. His conduct of leaving the house and returning later in the day reveal that he did not intend to face the parents of the appellant. Moreso, the appellant (RW1) in her affidavit Ex.RW1/A had repeatedly said that she and her parents tried to patch up with the respondent, but all their efforts had failed. The respondent did not prefer to cross examine the appellant (RW1) on any of her assertions made in her affidavit Ex.RW1/A. Thus, her deposition qua her cause to leave her matrimonial home on January 25, 2002 and again on September 06, 2003 was duly explained by her in her affidavit Ex.RW1/A needed to have been given due weightage especially when it was an unchallenged testimony and here the learned Judge Family Court went wrong.

 

  1. The respondent herein, if intended to secure a decree on the grounds of cruelty and desertion ought to have proved his allegations by leading positive evidence and not ought to have depended upon the suggestions not been put to him. Admittedly, per his cross examination as PW1, the respondent herein had visited his wife few days after first delivery and rather taunted that she had killed the child and thus committed an act of cruelty. Moreso the allegations of being beaten, harassed etc. made by appellant in her affidavit Ex.RW1/A also went unchallenged.
  2. Though admittedly on September 06, 2003 the appellant herein had left the matrimonial home under the circumstances above but the respondent failed to prove his sincere effort to call her back. Rather he filed a divorce petition No.24/2013 in Faridabad on September 08, 2003 i.e. just two days after and that too on the ground of desertion alleging his wife had deserted him since last more than a year, thus concealing the fact that his wife was three months pregnant with his second child who later was born on April 03, 2004. Admittedly, the respondent withdrew the said divorce petition on January 19, 2004, probably realizing his mistake that his wife was pregnant. The filing of HMA Petition No.24/2013 for divorce within two days of her leaving the matrimonial home show the hollowness in his claim of making sincere efforts to bring her back. The filing of a petition of divorce on false ground and then unilaterally withdrawing it rather adds to the cruelty upon the other spouse.
  3. We also note the appellant herein has deposed in her affidavit Ex.RW1/A that the respondent never visited her parental house to bring her or her daughter to the matrimonial home despite the fact that now daughter is more than nine years old.
  4. Thus, her staying with parents since September 06, 2003 was duly explained by the appellant herein and there exist a reasonable cause for her staying separate. The fact that she and her parents tried to patch up the matter and tried to convince the respondent, per affidavit Ex.RW1/A, rather show that she never intended to end up matrimonial ties with the respondent, she being unemployed, staying with her old parents who rather were bearing expenses of her and that of her daughter. The record reveal the respondent rather had deserted the appellant and even today she has to fight for her maintenance.

 

  1. Now, the second incident relied by the learned Judge, Family Court is of dated June 13, 2004 when the respondent allegedly had called a Biradari Panchyat and had reached the residence of the appellant herein along with one Ram Kumar, Om Prakash and Bir Singh, but the appellant did not accept the advice of the Panchyat and rather had slapped the respondent in the presence of members of Panchyat. This incident is denied by the appellant in her reply/written statement dated August 06, 2010. Rather her stand is that her complaint was being heard from October 20,2003 to June 17, 2005 in the Anti Crime Women Cell, Nanakpura, Delhi and during such hearings the respondent was asked so many times by the Investigating Officer to visit the house of the appellant herein, but he never came. Though, it is correct that appellant did not cross-examine the respondent (PW1) on this incident, but in the face of the denial by the appellant in her reply dated August 06, 2010, the respondent was required to do something more; he ought to have produced such witnesses, allegedly present at the time of alleged incident dated August 06, 2010.
  2. Likewise, the respondent failed to produce Rishi Kumar and Ram Kumar as his witnesses who allegedly went on January 05, 2006 with respondent to the parental house of the appellant where he was allegedly kicked by the mother of the appellant.
  3. If the respondent was abused by his wife or by her mother on June 13, 2004 or on January 05, 2006, then in view of the denial of such incidents by the appellant in her reply dated August 06, 2010, he ought to have produced the best evidence available with him viz his friends or relatives who allegedly accompanied him on such dates.
  4. On the other hand, the appellant in her affidavit Ex.RW1/A had elaborated the circumstances to show how she was tormented by her husband in her matrimonial house; why she had left the matrimonial home; the apathy shown by her husband towards her and their child by not even meeting the child once. The appellant rather proved that she was a victim of domestic violence as was always abused, taunted by her husband/respondent. The admission of the respondent that he accused his wife of killing their son and his conduct of leaving his house on September 06, 2003 and not returning till appellant was taken away by her parents and the fact of his filing a divorce petition within two days thereafter on a false ground do show the respect he had for his wife and the way he used to treat her. It is an admitted fact that FIR under Section 498A/406 of the IPC is still pending against him and we note the efforts put in by the appellant to secure maintenance for self and for her daughter by moving applications every now and then.
  5. Thus, looking at the material which has come on record it is clear that wife had sufficient grounds to live separately. We are of the view that learned Judge, Family Court, Dwarka, has misread the evidence and though the appellant left the matrimonial home, but she never wished to bring her marital ties permanently to an end. The desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave, the desertion could be by such conduct of other spouse and compelled to live separately.
  6. In the decision reported as (2010) 4 SCC 476 Ravi Kumar vs Julmidevi the Supreme Court has observed as under:-

“13. It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.”

  1. Thus, the facts above do show that appellant was forced by the conduct of the respondent to leave the matrimonial home and that it is the respondent who is guilty of constructive desertion and had made the appellant and her daughter run from pillar to post even for their bare minimum maintenance and had rather failed to prove the behavior of the appellant towards him was such that it ever caused a reasonable apprehension in his mind that it was not safe for him to continue the matrimonial relations with the appellant. The respondent herein had failed to bring his case within the parameters of cruelty and desertion as defined and as such, we set aside the impugned judgment dated November 22, 2013 of the learned Judge, Family Court, Dwarka in HMA No.444/2009 tilted ‘Sohan Singh Nehra vs Nisha Rani’.
  2. The appeal is thus allowed. The impugned judgment and decree dated November 22, 2013 is set aside. HMA No.444/2009 filed by the respondent is dismissed.
  3. No order as to cost.

(YOGESH KHANNA) JUDGE (PRADEEP NANDRAJOG) JUDGE JANUARY

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Divorce on Grounds of Cruelty.

“Divorce.– (1) Any marriage solemnized, whether before or after the commencement of this 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 xxx            xxx       xxx (ia)            has, after the solemnization of the marriage, treated the petitioner with cruelty;”

Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger’ (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87]. The provision in clause (ia) of Section 13(1), which was introduced by the Marriage Laws (Amendment) Act 68 of 1976, simply states that ‘treated the petitioner with cruelty’. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the Legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases.          It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla Hindu Law, 17th Eidition, Volume II, page 87).

In the case of Dastane vs. Dastane, AIR 1975 SC 1534, examined the matrimonial ground of cruelty as it was stated in the old Section 10(1)(b) and observed that any inquiry covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent.         It was further observed that it was not necessary, as under the English law that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. In essence what must be taken as fairly settled position is that though the clause does not in terms say so it is abundantly clear that the application of the rule must depend on the circumstances of each case; that ‘cruelty’ contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause an apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status environments and social values, as also the customs and traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, this Court construing the question of ‘cruelty’ as a ground of divorce under Section 13(1)(ia) of the Act made the following observations :

“Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act.  Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent.   Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental.    Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.           In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent.

Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.”

This Court, construing the question of mentral cruelty under Section 13(1)(ia) of the Act, in the case of G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296, observed :

“The court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances.            Having regard to the sanctity and importance of marriages in a community life, the court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part of the counter-

petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.”

Quoting with approval the following passage from the judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337, this Court observed therein:

“Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made”.

Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91).

The foundation of the case of ‘cruelty’ as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated.            When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations.      She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K.Jain. This Court in the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : “Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment”.

Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn        from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.

Marriage and Divorce in India.

 

Meaning of Marriage in Indian Culture

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Marriage as a social institution is an affirmance of civilized social order where two individuals, capable of entering into wedlock, have pledged themselves to the institutional norms and values and promised to each other a cemented bond to sustain and maintain the marital obligation. It stands as an embodiment for continuance of the human race.

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.

Mode of Dissolution of Marriage.

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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.

  1. Contested Divorce
  2. Annulment or Nullity
  3. Divorce by Mutual Consent.

DISSOLUTION OF MARRIAGE:

The same laws according to which the marriage was solemnized govern dissolution of marriages, and the rights consequent to the dissolution.

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

 For annulment of the marriage, since its very inception, on grounds such as the non-fulfilment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

All Indian personal laws have provided for grounds for divorce. Some common grounds of divorce are:

Divorce by mutual Consent under Hindu Marriage Act.

(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 appropriate faith based law under which they got married or in case of civil marriage under the appropriate law under which they married or their marriage was registered.

GROUND ON WHICH MARRIAGE CAN BE DISSOLVED IN CONTESTED DIVORCE.

  1. Adultery
  2. Cruelty
  3. Desertion and failure to maintain
  4. Conversion to another religion
  5. Incurable mental disorder
  6. Incurable mental disorder which may result in abnormally aggressive or irresponsible behaviour
  7. Virulent and incurable leprosy, or communicable venereal disease not contracted from the party filing the application
  8. Renunciation of worldly life

The parties may decide to seek divorce by mutual consent, having decided that they do not want to live together. In such a petition, they need not disclose their reasons for making such a decision.

Muslim personal law also grants several options for the husband to seek divorce without approaching the court. The wife would be entitled to maintenance and dower and also to appeal the divorce in court.

JURISDICTION FOR FILLING OF PETITION FOR DIVORCE

An application for divorce may be filed in a court having jurisdiction. Such a court must be:

  1. a court capable of entertaining matrimonial cases.
  2. a court that has territorial jurisdiction over the place of marriage, the place where the couple last resided together, and the place where the respondent spouse currently resides. If the respondent resides abroad, then the petition can also be filed in India the place of residence of the petitioner.
  3. For the decree to be valid, the court must apply the law under which the marriage was solemnised.

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’