FAO Nos.108/2013 & 109/2013 Page 1 of 21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: May 09, 2013
Judgment Pronounced on: May 23, 2013
+ FAO 108/2013
SUMAN SINGH .....Appellant
Represented by: Ms.Padmini Gupta, Advocate
versus
SANJAY SINGH ..... Respondent
Represented by: Respondent in person
FAO 109/2013
SUMAN SINGH .....Appellant
Represented by: Ms.Padmini Gupta, Advocate
versus
SANJAY SINGH ..... Respondent
Represented by: Respondent in person
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V.KAMESWAR RAO
PRADEEP NANDRAJOG, J.
1. On February 26, 1999, respondent Sanjay and appellant Suman got
happily married and the two were blessed with a daughter born on June
15, 2002 followed by another bundle of delight, another daughter born on
February 10, 2006.
2. Unfortunately, relations soured with passage of time. Sanjay
sought dissolution of the marriage alleging cruelty and Suman sought
restitution of her conjugal rights. FAO Nos.108/2013 & 109/2013 Page 2 of 21
3. Both Sanjay and Suman reached the Court on July 19, 2010. It
appears both were aware of the action proposed to be taken by the other.
Petition filed by Sanjay under Section 13(1)(ia) of the Hindu Marriage
Act was filed on July 19, 2010, which was the date when Suman’s
application under Section 9 of the Hindu Marriage Act was also filed.
4. Whereas Suman alleged that within a few days of the marriage
Sanjay’s behaviour changed because he was aggrieved of insufficient
dowry brought by her notwithstanding her family members having spent
lavishly when the two got married; but she bore him. His behaviour
turned rude and he started picking up quarrel on trivial matters and
additionally he would even turn physical, but she continued to suffer to
maintain the family bond but realized that Sanjay have developed
intimacy with another woman and had left the matrimonial house
compelling her to seek restitution of her conjugal rights. Sanjay pleaded
that the marriage was a dowry-less marriage and during 10 years
thereafter he was regularly harassed and tortured by Suman who degraded
and insulted him at the drop of the hat and even would misbehave with
his parents. To save the marriage he left his parents and since January
2005 started living separately from his parents. But Suman’s attitude did
not change. In the year 2006 he purchased Flat No.91, Pocket IV, Sector-
2, Rohini in Suman’s name hoping that she would improve. But she did
not. She even started visiting his office and created ugly scenes by
abusing him. She not only threatened but lodged false complaints with
the police alleging false facts against him and his parents. She repeatedly
threatened to commit suicide and leave a note recording false facts to
teach him and his parents a lesson. FAO Nos.108/2013 & 109/2013 Page 3 of 21
5. Sanjay’s written statement to Suman’s petition is his version
pleaded in the petition filed by him seeking dissolution of the marriage;
of course he denied the insinuations against him, and as regards Suman,
she denied the insinuation against her but pleaded that theirs was a love
marriage solemnized on March 22, 1997 without telling the parents and
that subsequently, in front of her parents she and Sanjay performed the
rituals of marriage on February 26, 1999. For 3 years after the marriage
she and Sanjay lived with a friend and shifted to the house of Sanjay’s
parents in May 2002 but since they never approved of the marriage she
and Sanjay shifted to a residential accommodation before Sanjay
purchased a flat in her name in Rohini part sale consideration whereof
was paid by her mother; but would continue to harass and misbehave with
her. He developed intimate relations with a lady named Jyoti and
therefore wanted Suman to divorce her and that Sanjay was pressurizing
her mother to transfer ownership of her property situated in Sultanpuri in
his favour.
6. In HMA No.527/2010 filed by Suman, following issues were
settled:-
“1. Whether the Petitioner is entitled to the restitution of
conjugal rights as prayed? OPP
2. Relief.”
7. In HMA No.685/2010 filed by Sanjay, following issues were
settled:-
“1. Whether after solemnization of marriage, the Respondent
has treated the Petitioner with cruelty? OPP
2. Whether the Petitioner is entitled to the decree of divorce
as prayed? OPPFAO Nos.108/2013 & 109/2013 Page 4 of 21
3. Relief.”
8. Evidence was led by the parties in HMA No.685/2010 filed by
Sanjay. In support of his case, Sanjay examined himself as PW-1. In his
examination-in-chief, Sanjay PW-1 deposed on the lines of averments
made in the divorce petition filed by him. He was cross-examined, and
being relevant, a part of the cross-examination is being noted as under:-
“I was married with the respondent about 13 years back but I
do not remember the date. Our marriage was love marriage.
My parents were not agree for the marriage but the parents of
the respondent were agreed for the marriage….After marriage I
resided with the respondent at rental accommodation at P-
2/401-402, Sultanpuri, Delhi. Presently, I am posted at
Directorate of Family Welfare, Metcalfe House, Delhi, as
UDC….I always resided with the respondent at rental
accommodation. For two years after the marriage, we resided
at rented accommodation but I do not remember the exact
period and thereafter. I along with the respondent shifted to my
parental home. I along with the respondent resided at my
parental home for about 6 years…Presently, I am residing
separately from the respondents since 1 ½ years…I know Ms.
Jyoti Sharma as she was earlier my colleague. Ms. Jyoti
Sharma never met me after the year 2007. Again said, she met
me 2-3 times in the year 2007 in connection with official work.
It is wrong to suggest that I used to meet Ms. Jyoti Sharma after
the year 2007….It is wrong to suggest that my father in drunken
condition has thrown out the respondent after quarrelling with
the respondent. It is correct that after throwing out the
respondent from the matrimonial home, after some time we
lived together in a rented accommodation…. It is wrong to
suggest that I have not purchased any flat in the name of the
respondent in the year 2006. It is wrong to suggest that I had
purchased the said flat in the name of the respondent in the
year 2005 with the contribution of money given by the mother
of the respondent. I used to come home after 12 midnight. I
used to come home between 9 PM to 10 PM. It is wrong to
suggest that I used to come home after 12 midnight. (Vol. I used
to come late due to the nature of work assigned to me by the
department as I was appointed as a caretaker). It is wrong to FAO Nos.108/2013 & 109/2013 Page 5 of 21
suggest that I used to spend time with one Jyoti after close of
working hours at 5.00 PM…I have no liability except the
petitioner and my two minor children… It is wrong to suggest
that we are residing separately since January 2007 or that
there is no cohabitation since September 2008. It is wrong to
suggest that I am deposing falsely.”
9. Suman examined herself as RW-1 and deposed in harmony with
the averments made in the written statement filed by her to the petition
seeking divorce filed by Sanjay. She proved a complaint, Ex.RW-1/1
dated July 28, 2010, submitted by her to Deputy Commissioner of Police,
Outer District, Delhi, which complaint records that Sanjay and his father
used to harass Suman for dowry. She was cross-examined and being
relevant, a part of the cross-examination is being noted as under:-
“It is correct that I have filed a petition against the respondent
(petitioner in the HMA No.685/10). It is also correct that I have
also filed a complaint against the respondent (petitioner in the
HMA No.685/10) and his other family members under Section
498A/406 IPC. The complaint was filed by me in August, 2010
but the complaint was made earlier to DCP, Outer. It is correct
that the petition filed by me under Domestic Violence Act has
been dismissed from the court of Ms. Rachna Tiwari
Lakhanpal, the ld. M.M., Delhi. The respondent (petitioner in
the HMA No. 685/10) has committed cruelty towards me in the
year 1999 at the time of Raksha Bandhan. I have not made any
complaint in the year 1999. I have also not made any complaint
since 1999 to 2010. It is correct that all the complaints have
been made by me after August, 2010. I have not mentioned any
incident in my affidavit Ex.PW1/A.
I am graduate. It is correct that I have not mentioned in
my affidavits Ex.PW1/A regarding demand of dowry and
beatings and cruelty by the respondent (petitioner in the HMA
No.685/10) and his other family members. It is correct that I
have mentioned in my domestic violence petition that I had
purchased the flat bearing No.91, Second Floor, LIG Flat,
Pocket-4, Sector-2, Rohini, Delhi after selling my jewellery. I
have not filed any petition against the respondent (petitioner in FAO Nos.108/2013 & 109/2013 Page 6 of 21
the HMA No. 685/10) in respect of demand of dowry as well as
cruelties during the period 1999 to 2010. It is correct that I
have no matrimonial relations with respondent (petitioner in
the HMA No. 685/10) for the last about 3 and a half years…I
have not told about my cruelty as well as demand of dowry to
my mother and other family members…It is correct that I made
so many complaints against my husband. It is correct that all
the complaints have been made by me after August, 2010 as I
came to know about Ms. Jyoti Sharma. It is wrong to suggest
that the respondent (petitioner in the HMA No. 685/10) is not
having any relations with Ms. Jyoti Sharma….I have seen Jyoti
Sharma with the respondent (petitioner in the HMA No. 685/10)
at C-1, 368, Third Floor, Muskan Apartment, Sector-17,
Rohini, Delhi. (Vol. The said property is in the name of Jyoti
Sharma and mentioned as Jyoti Sharma, W/o Sanjay Sharma). I
have not filed any documents regarding the said property as I
have approached the concerned authority through RTI but still,
I have not received any information. It is wrong to suggest that
the respondent is not having illicit relations with Ms. Jyoti
Sharma.
It is correct that the complaints dated 30.06.2010,
01.07.2011, 18.05.2011, 21.07.2011, 25.10.2011, 01.06.2011,
28.10.2010, 13.08.2010 and 28.07.2010 have been filed by me
and the same are Ex.RW-1/PX (Colly). It is correct that I had a
few differences with the respondent like not giving me quality
time….It is correct that I am also filed a petition under
Domestic Violence Act and the same was also dismissed by Ms.
Rachna Tiwari Lakhanpal, the ld. M.M. I did not file any
appeal against the said order of ld. MM since we have got our
house property back. After the marriage, my father-in-law and
two brothers-in-law raised demands of dowry. I never lodged
any complaint against the said in-laws with police or any other
authority.
It is correct that I have stated in my affidavit that my
husband had illicit relation with one Ms. Jyoti Sharma his
colleague. It is also correct that I want to stay with my husband
despite his having illicit relationship with the said Jyoti
Sharma. It is correct that I have not cohabited with my husband
for last 4 years. I made several efforts to stay with my husband.
I even suggested that he may continue with his illicit FAO Nos.108/2013 & 109/2013 Page 7 of 21
relationship but stay in the house with us. It is wrong to suggest
that I am deposing falsely.” (Emphasis Supplied)
10. By a common judgment dated December 14, 2012, the learned
Additional Principal Judge, Family Courts, Rohini, Delhi has allowed
petition seeking dissolution of the marriage filed by Sanjay being HMA
No.685/2010, and has dismissed HMA No.527/2010 re-numbered as
HMA No.273/2011 filed by Suman. The learned Judge has held that
Sanjay has successfully established cruelty as pleaded by him at the
hands of Suman.
11. In so concluding, it has been held by the learned Trial Judge that:-
(i) In spite of being cross-examined on material points no
contradictions to render unreliable Sanjay’s testimony were brought out;
(ii) Sanjay was not found wavering on material points;
(iii) On may material points Suman’s lawyer had not cross-examined
Sanjay i.e. had not even dared to challenge Sanjay’s sworn testimony;
(iv) Complaints lodged by Suman alleging dowry harassment at the
hands of Sanjay and his parents were ex-facie false;
(v) Suman had failed good to establish Sanjay having illicit
relationship with another lady and said allegations would cause immense
mental pain and agony;
(vi) Sanjay’s testimony that whenever he visited Suman’s parental
house he was treated badly could be rebutted by Suman by examining her
family members, whom she did not requiring an adverse inference to be
drawn against her. FAO Nos.108/2013 & 109/2013 Page 8 of 21
12. It would be most apposite to note the following portion of the
impugned judgment passed by the learned Trial Judge:-
“39. The failure of the Respondent/her counsel, in not putting
forward her case in cross-examination of the
Petitioner/husband and failure to give suggestions in rebuttal of
his deposition constitute and are deemed, to be admissions on
her part. The Petitioner, has thus, clearly brought over the
record that the Respondent started harassing and torturing him
just a few days after the marriage. She pressurized him to get
separated from his family members. She was brought to the
matrimonial home by the parents of the Petitioner but due to
her nature/conduct, she (with the Petitioner), was asked to
leave the house, after staying for a few days. The Petitioner
has, also, brought over the record that the Respondent did not
like him talking to his parents and other family members. She
did not like him to sit with them even when they were unwell.
She never wanted him to help them financially, to whatever
little extent he could.
45. It is a general rule that one who asserts a fact or claim
has to prove it. The burden of proof is on him, who asserts it
and not on him who denies. [Reliance placed on 1 (2005) DMC
397 (DB)]. The nature of proof required in the matrimonial
matters is different. The facts alleged by a spouse about their
private intimate life are not supposed to be known to any other
person and no corroboration can be expected in such case. To
seek a corroboration to a fact alleged by a spouse to a
marriage regarding the healthy or unhealthy character of their
intimate relation which belongs to the sacred and secrets
precincts of marital life, and which are known only to the
spouses and which are not supposed to be known to any other
living soul on the surface of the planet, would amount to
shutting one‟s eye towards the facts of life and reality.
Corroboration, therefore, to the version of either spouse can
hardly be expected to come from any other independent source.
Such matters are always decided on preponderance of
probabilities. (Reliance placed on A versus B- 1985
Matrimonial Law Reporter 326).
46. It is, also, well settled law that where accusations and
allegations have been leveled by the parties against each other, FAO Nos.108/2013 & 109/2013 Page 9 of 21
the court has to consider the context in which such accusations
etc. have been made. the court, also, has to keep in mind the
physical and mental condition of the parties, as well as their
social status and has to consider the impact of the personalities
and conduct of one spouse on the mind of the other, weighing
all the incidents and quarrels between the spouses from that
point of view. The conduct of a spouse has to be examined in
the light of the other spouse‟s capacity for endurance and
extent to which that capacity is known to the spouse. (Reliance
placed on 151 (2008) DLT 341- Surender Pal vs Kanwaljeet
Kaur).
47. The parties are well-educated and come from middle
class section of the society…
48. The values that middle class section of our Indian society
holds, are well known. The in-laws and other relations expect
due regards from the newly-wed wife. In fact it is expected that
she gets-up early, prepares breakfast, lunch and dinner for the
entire family herself or with the assistance of other family
members. It is, also, expected that such a newly-wed greets the
guests and visitors to the house respectfully. It is, also, expected
that she serves lunch or dinner to them and if it does not
happen, they feel disgraced in the presence of others. If the
newly-wed does not behave in such manner as expected from
her, they are bound to suffer mental pain and agony. The
Respondent, in the instant case, remained indifferent towards
the feelings of the Petitioner‟s parents and other family
members. She did not care for any visitor (s), any guest (s) or
any relation (s) of the Petitioner or even his friend (s). The
Petitioner, therefore, would have suffered mental pain and
agony, due to such acts of omission and commission on the part
of the Respondent.” (Emphasis Supplied)
13. Aggrieved by the impugned judgment dated December 14, 2012
passed by the Trial Judge granting decree of divorce to Sanjay and
dismissing HMA No.527/2010 filed by Suman seeking restitution of
conjugal rights, Suman has filed the above captioned appeals.
14. Section 13(1)(ia) of the Hindu Marriage Act, 1955 prescribes that
any marriage, may, on a petition presented by either the husband or the FAO Nos.108/2013 & 109/2013 Page 10 of 21
wife, be dissolved by a decree of divorce on the ground that the other
party „has, after the solemnization of the marriage, treated the petitioner
with cruelty‟.
15. A matrimonial dispute is not just a legal dispute, but more
importantly it is a family problem and a social concern. Matrimonial
disputes should not be viewed from the glasses of legal technicalities.
They should be appreciated at the human level of being a conflict
between a husband and wife. Such issues should be dealt with sensitively
rather than mechanically. Thus, a pragmatic approach and not a pedantic
one is required while dealing with matrimonial disputes.
16. While dealing with the concept of ‘cruelty’, in the decision
reported as AIR 2005 SC 534 A.Jayachandra v. Aneel Kaur, the Supreme
Court observed as under:
“The expression „cruelty‟ has not been defined in the Hindu
Marriage Act, 1955. The said expression has been used in
relation to human conduct or human behavior. It is the conduct
in relation to or in respect of matrimonial duties and
obligations. Cruelty is a course or conduct of one, which is
adversely affecting the other. It may be defined as willful and
unjustifiable conduct of such character as to cause danger to
life, limb or health, bodily or mental, or as to give rise to a
reasonable apprehension of such a danger, The question of
mental cruelty has to be considered in the light of the norms of
marital ties of the particular society to which the parties
belong, their social values, status, environment in which they
live.”
17. Cruelty need not be physical. If from the conduct of the spouse
same is established and/or an inference can be legitimately drawn that the
treatment of the spouse is such that it causes an apprehension in the mind
of the other spouse, about his or her mental welfare, then such conduct FAO Nos.108/2013 & 109/2013 Page 11 of 21
amounts to cruelty. In a delicate human relationship like matrimony, one
has to see the probabilities of the case.
18. Cruelty may be mental or physical. Mental cruelty may consist of
verbal abuses and insults by using filthy and abusive language leading to
constant disturbance of mental peace of the other party. If the cruelty is
physical, the Court will have no problem in determining it. It is a question
of fact and degree. In physical cruelty, there can be tangible and direct
evidence, but in case of mental cruelty there may not at the same time be
direct evidence. In cases where there is no direct evidence, Courts are
required to probe into the mental process and mental effect of incidents
that are brought out in evidence. The concept, proof beyond the shadow
of doubt, is to be applied to criminal trials and not to civil matters and
certainly not to matters of such delicate personal relationship as those, of
husband and wife. First, the enquiry must begin as to the nature of cruel
treatment, second the impact of such treatment in the mind of the spouse,
whether it caused reasonable apprehension that it would be harmful or
injurious to live with the other. Ultimately, it is a matter of inference to be
drawn by taking into account the nature of the conduct and its effect on
the complaining spouse. However, there may be a case where the conduct
complained of itself is bad enough and per-se unlawful or illegal. Then
the impact or injurious effect on the other spouse need not be enquired
into or considered. In such cases, the cruelty will be established if the
conduct itself is proved or admitted.
19. To constitute cruelty, the conduct complained of should be ‘grave
and weighty’ so as to come to the conclusion that the petitioner spouse
cannot be reasonably expected to live with the other spouse. It must be
something more serious than ‘ordinary wear and tear of married life’. It FAO Nos.108/2013 & 109/2013 Page 12 of 21
is for the Court to weigh the gravity. It has to be seen whether the conduct
was such that no reasonable person would tolerate it. It has to be
considered whether the complainant should be called upon to endure it as
a part of normal human life. Every matrimonial conduct, which may
cause annoyance to the other, may not amount to cruelty. Mere trivial
irritations, quarrels between spouses, which happen in day-to-day married
life, would not amount to cruelty. The foundation of a sound marriage is
tolerance, adjustment and respecting one another. Tolerance to each
other's fault to a certain bearable extent has to be inherent in every
marriage. Petty quibbles, trifling differences should not be exaggerated
and magnified to destroy what is said to have been made in heaven. All
quarrels must be weighed from that point of view in determining what
constitutes cruelty in each particular case, keeping in view the physical
and mental condition of the parties, their character and social status. A
too technical and hypersensitive approach would be counter productive to
the institution of marriage. Conduct has to be considered in the
background of several factors such as social status of parties, their
education, physical and mental conditions, customs and traditions. It is
difficult to lay down a precise definition or to give exhaustive description
of the circumstances, which would constitute cruelty. It must be of the
type as to satisfy the conscience of the Court that the relationship between
the parties had deteriorated to such an extent, due to the conduct of the
other spouse, that it would be impossible for them to live together without
mental agony, torture or distress, entitling the complaining spouse to
secure divorce.
20. In the backdrop of above legal position, we proceed to examine the
present case.FAO Nos.108/2013 & 109/2013 Page 13 of 21
21. In the instant case, it is the claim of Sanjay that Suman treated him
with cruelty after their marriage was solemnized. On the other hand,
Suman claims that it was Sanjay who treated her with cruelty and that she
is ready to forgive Sanjay and lead a matrimonial life with him.
22. As already noted hereinabove, the Trial Judge has accepted the
case set up by Sanjay that Suman had treated him with cruelty after
solemnization of their marriage. The mainstay of the decision of the Trial
Judge is that the failure of counsel appearing for Suman to put forward
the case of Suman to Sanjay in his cross-examination and giving
suggestions to him regarding number of the allegations leveled against
her by him in his examination-in-chief goes to show that Suman had
‘admitted’ as correct the allegations of cruelty leveled against her by
Sanjay.
23. The aforesaid approach adopted by the Trial Judge is too narrow
and pedantic. It is true that the cross-examination of Sanjay by the
counsel acting for Suman is most unsatisfactory because with respect to
numerous incidents deposed to by Sanjay the counsel has not even
bothered to even suggest that the same are untrue. But, human relations
have not to be severed due to level of advocacy falling below acceptable
standards. In an adversarial litigation, which we follow in India, if a
Judge were to find that a counsel’s standard has not reached the desired
level and the litigation ceases to be adversarial, the Judge must step in.
We often use the phrase that a Judge is a match referee. We do not use
the phrase that the Judge is an umpire. Now, an umpire has a static
position as in the game of cricket. But a referee, as is to be found in a
game of football, runs up and down in the field keeping a hawk’s eye on
the football to ensure that nobody fouls. FAO Nos.108/2013 & 109/2013 Page 14 of 21
24. A closer look at the impugned judgment would reveal that the
learned Trial Judge had adopted different yardsticks while appreciating
the evidence led by the parties. In case of Sanjay, his sole testimony has
been held to be sufficient by the leaned Trial Judge on the ground that „to
seek a corroboration to a fact alleged by a spouse to a marriage
regarding the healthy or unhealthy character of their intimate relation
which belongs to the sacred and secrets precincts of marital life, and
which are known only to the spouses and which are not supposed to be
known to any other living soul on the surface of the planet, would amount
to shutting one‟s eye towards the facts of life and reality.‟ On the other
hand, an adverse inference has been drawn against Suman for not
examining her family members to disprove allegations leveled by Sanjay
that he was not treated properly by family members of Suman whenever
he went to her parental house. One of the allegations leveled by Suman
against Sanjay was that the family members of Sanjay used to misbehave
with her and instigate Sanjay to treat her with cruelty since they did not
approve of their marriage. The learned Judge has not drawn an adverse
inference against Sanjay who has likewise not produced his parents to
rebut the same.
25. As observed by us in the preceding paras, a pragmatic approach
and not a pedantic one is required while dealing with matrimonial
disputes. The Trial Judge has dealt with the evidence led by the parties in
a very superficial manner.
26. We take upon ourselves the task of examining the evidence led by
the parties in order to arrive at a just decision in the present case.
27. A careful analysis of the evidence led by the parties brings out the
following: Sanjay and Suman had a clandestine love affair because both FAO Nos.108/2013 & 109/2013 Page 15 of 21
knew that their family members would be against their relationship. They
probably solemnized a secret marriage and two years thereafter on
February 26, 1999, with the blessings of Suman’s parents the two got
officially married, but without any approval from parents of Sanjay. For
about 2 years after their marriage, Sanjay and Suman stayed in a rented
accommodation. Thereafter they shifted to the parental house of Sanjay.
On June 15, 2002 Sanjay and Suman were blessed with a baby girl
Shriya. For the next 5 years Sanjay and Suman stayed at the parental
house of Sanjay, during which period they were blessed with another
baby girl, Harleen on February 10, 2006. In the year 2007 Sanjay and
Suman along with the two daughters shifted to a rented accommodation
and finally to a house purchased in Suman’s name by funds partly made
available by Sanjay and partly by Suman’s parents.
28. The city of Delhi is a costly place to live. Family budgeting and
especially when a child is born is becoming a herculean task even for the
financially well-off and even they come under financial stress and the
same burdens and causes stress on the matrimonial bond.
29. From the fact that Sanjay and Suman, as admitted by Suman
herself, got secretly married on March 22, 1997 without informing their
parents and for 2 years hid the marriage till when the two officially got
married on February 26, 1999; but only in presence of her parents, we
have sufficient proof that the marriage was a dowry-less marriage and
Sanjay’s parents never reconciled to their son marrying a girl not of their
choice. Thus, ex-facie, Suman’s allegations that her in-laws harassed her
for dowry from the inception of the marriage is incorrect. Admittedly, for
another three years the couple lived with a friend of Sanjay. They shifted
to the house of Sanjay’s father, where Sanjay’s parents resided in May, FAO Nos.108/2013 & 109/2013 Page 16 of 21
2002 and the reason appears to be the fact that Suman was in the family
way. Shriya was born on June 15, 2002. It appears that by said time the
anger of Sanjay’s parents had vanished. The couple resided in the house
of Sanjay’s parents for a few years, and a second child was born, but it is
apparent that things were not moving in the right directions evidenced by
the fact that firstly the couple shifted to a residential accommodation and
then to a flat purchased in Suman’s name by finances provided partly by
Sanjay and partly by Suman’s mother. It is apparent that between the
young couple, they were managing well. But, two more lives meant two
more mouths to be fed and it appears that the economic pressures of
family budgeting started taking their toll. Whereas Suman is a housewife
and Sanjay works, and we are given to understand earns about `45,000/-
per month, Suman started suspecting Sanjay’s fidelity towards her. She
probably could not understand that in a workplace where even women
work, her husband was bound to be speaking to his female colleagues.
The young couple could not sort out their affairs and Suman was illadvised to lodge false complaints alleging dowry harassments not only by
Sanjay but even his father. We cannot overlook the fact that Sanjay had
contributed for a flat to be purchased in the name of Suman. The
pressure-cooker seems to have exploded in the year 2009. Sanjay had
deposed of Suman coming to his office and creating a scene. Complaints
have been made by Suman to the police contents whereof which she has
not been able to prove as true; and on the contrary from the admitted facts
noted above any reasonable person would draw the conclusion that the
complaints alleging dowry harassment from the inception not only by
Sanjay but even his parents are ex-facie false. Admittedly Sanjay’s
parents did not bless the couple when they officially got married on
February 26, 1999. If they were not present at the scene, where is the FAO Nos.108/2013 & 109/2013 Page 17 of 21
question of they demanding dowry from the very inception of the
marriage. The fact that Sanjay and Suman resided with Sanjay’s friend
till the year 2002 is proof of the fact that both of them were persona-nongrata in the house of Sanjay’s parents. Thus, there would be no question
of a dowry demand being raised till said year. Admittedly, the two
shifted to the house of Sanjay’s parents when Suman was in the advanced
stage of pregnancy. Within less than 3 weeks of the couple shifting to the
house of Sanjay’s parents, they were blessed with a baby girl. They
shifted out of the house somewhere in the year 2007 and it is apparent
that things were not too well. The only probable reason which one can
fathom is that the dislike for Suman could not be bridged. But the fact
that Sanjay left the house of his parents is proof of the fact that he was
ready to stand by Suman. The young couple along with their two
daughters took a house on rent but probably found the rent to be a strain
on their finances. It appears that the usual matrimonial discord which we
find in a large number of houses in Delhi i.e. the difficulty faced to beat
the inflation and manage the family budget started taking its toll.
Suman’s parents stepped in to provide some finances and some were
provided by Sanjay to buy a flat in Suman’s name. The fact that the flat
was purchased in Suman’s name tells us that her parents were wanting to
secure their daughter when they provided part finances. But the fact that
even Sanjay provided part finances and still allowed the flat to be
purchased in Suman’s name evidences that he had no motive to extract
dowry. It was a desperate attempt of the young couple to not only
acquire a property but get rid of the liability to pay monthly rent. All this
budgeting must have taken a toll. Small skirmishes seems to have turned
into ugly spats finally ending up with Suman accusing her husband of
having developed illicit relations, probably for the reason Sanjay was FAO Nos.108/2013 & 109/2013 Page 18 of 21
reaching home late; and as regards him, the probable reason could be: the
thought of returning to a comfortless home with a nagging wife waiting
resulting in his spirits being more often depressed than excited and
therefore the return to the house being late. The young couple appears to
have been caught in a vicious circle of cause and effect. Suman’s
nagging led Sanjay to return home late and Sanjay’s late returning to
home in turn triggering further nagging and thereby compelling Sanjay to
return home late and late and in turn the nagging becoming severe till it
reached the uncomfortable level for Sanjay to tolerate any further when
Suman started lodging false complaints with the police.
30. At this juncture, we note the decision of the Supreme Court
reported as 2013 III AD (SC) 458 K. Srinivas Rao v D.A. Deepa in which
decision, on the subject of making unfounded complaints to the police,
and the same being treated as constituting mental cruelty, the Supreme
Court observed as under :-
“14. Thus, to the instances illustrative of mental cruelty noted
in Samar Ghosh, we could add a few more. Making unfounded
indecent defamatory allegations against the spouse or his or
her relatives in the pleadings, filing of complaints or issuing
notices or news items which may have adverse impact on the
business prospect or the job of the spouse and filing repeated
false complaints and cases in the court against the spouse
would, in the facts of a case, amount to causing mental cruelty
to the other spouse.
xxxxxxxx
22. We need to now see the effect of the above events. In our
opinion, the first instance of mental cruelty is seen in the
scurrilous, vulgar and defamatory statement made by the
respondent-wife in her complaint dated 4/10/1999 addressed to
the Superintendent of Police, Women Protection Cell. The
statement that the mother of the appellant-husband asked her to
sleep with his father is bound to anger him. It is his case that FAO Nos.108/2013 & 109/2013 Page 19 of 21
this humiliation of his parents caused great anguish to him. He
and his family were traumatized by the false and indecent
statement made in the complaint. His grievance appears to us
to be justified. This complaint is a part of the record. It is a part
of the pleadings. That this statement is false is evident from the
evidence of the mother of the respondent-wife, which we have
already quoted. This statement cannot be explained away by
stating that it was made because the respondent-wife was
anxious to go back to the appellant-husband. This is not the
way to win the husband back. It is well settled that such
statements cause mental cruelty. By sending this complaint the
respondent-wife has caused mental cruelty to the appellanthusband.
23. Pursuant to this complaint, the police registered a case
under Section 498-A of the IPC. The appellant-husband and his
parents had to apply for anticipatory bail, which was granted to
them. Later, the respondent-wife withdrew the complaint.
Pursuant to the withdrawal, the police filed a closure report.
Thereafter, the respondent-wife filed a protest petition. The
trial court took cognizance of the case against the appellanthusband and his parents (CC No. 62/2002). What is pertinent to
note is that the respondent-wife filed criminal appeal in the
High Court challenging the acquittal of the appellant-husband
and his parents of the offences under the Dowry Prohibition Act
and also the acquittal of his parents of the offence punishable
under Section 498-A of the IPC. She filed criminal revision
seeking enhancement of the punishment awarded to the
appellant-husband for the offence under Section 498-A of the
IPC in the High Court which is still pending. When the criminal
appeal filed by the appellant-husband challenging his
conviction for the offence under Section 498-A of the IPC was
allowed and he was acquitted, the respondent-wife filed
criminal appeal in the High Court challenging the said
acquittal. During this period respondent-wife and members of
her family have also filed complaints in the High Court
complaining about the appellant-husband so that he would be
removed from the job. The conduct of the respondent- wife in
filing a complaint making unfounded, indecent and defamatory
allegation against her mother-in-law, in filing revision seeking
enhancement of the sentence awarded to the appellanthusband, in filing appeal questioning the acquittal of the FAO Nos.108/2013 & 109/2013 Page 20 of 21
appellant-husband and acquittal of his parents indicates that
she made all attempts to ensure that he and his parents are put
in jail and he is removed from his job. We have no manner of
doubt that this conduct has caused mental cruelty to the
appellant- husband.
24. In our opinion, the High Court wrongly held that because
the appellant-husband and the respondent-wife did not stay
together there is no question of the parties causing cruelty to
each other. Staying together under the same roof is not a precondition for mental cruelty. Spouse can cause mental cruelty
by his or her conduct even while he or she is not staying under
the same roof. In a given case, while staying away, a spouse
can cause mental cruelty to the other spouse by sending vulgar
and defamatory letters or notices or filing complaints
containing indecent allegations or by initiating number of
judicial proceedings making the other spouse‟s life miserable.
This is what has happened in this case.
28. In the ultimate analysis, we hold that the respondent-wife
has caused by her conduct mental cruelty to the appellanthusband and the marriage has irretrievably broken down.”
(Emphasis Supplied)
31. Applying the ratio of law laid down by the Supreme Court in
Deepa’s case (supra), we have no hesitation in holding that by filing
numerous false complaints against Sanjay and his family members with
the police and in the office of Sanjay that Sanjay and his family members
used to demand dowry from her and treated her with cruelty when she
failed to fulfill their demands and that Sanjay was having an illicit
relation with his colleague, Suman has caused ‘mental cruelty’ to Sanjay
thereby entitling him to a decree of divorce under Section 13(1)(ia) of the
Hindu Marriage Act, 1955.
32. In view of above discussion, impugned judgment dated December
14, 2010 passed by the Principal Judge, Family Courts, Rohini, Delhi
granting decree of divorce in favor of Sanjay and dismissing application
for restitution of conjugal rights filed by Suman is affirmed.FAO Nos.108/2013 & 109/2013 Page 21 of 21
33. Parties are left to bear their respective costs.
(PRADEEP NANDRAJOG)
JUDGE
(V.KAMESWAR RAO)
JUDGE
MAY 23, 2013
mamta
