Tuesday, 9 August 2016

Whether husband is entitled to get divorce on ground of cruelty if wife has filed false DV ACT proceeding?

Though the proceedings under the Domestic Violence Act, 2005
are not criminal proceedings, in my view, the principle laid down by the
Supreme Court in K. Srinivas (supra) is equally applicable to such
proceedings. What is relevant is that the appellant was subjected to legal
proceedings on the basis of false and unsubstantiated allegations, which
would have caused embarrassment to the appellant and his family
members.
 In view of the aforesaid discussion, I am of the view that the
respondent has treated the appellant with cruelty entitling him to a decree
of divorce under Section 13(1)(ia) of the HMA. 
 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment delivered on: 23.05.2016
MAT.APP. 30/2008
ACJ ..... Appellant

versus
RJ ..... Respondent

.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI



1. The present appeal under Section 28 of the Hindu Marriage Act,
1955 (hereinafter referred as ‘HMA’) has been preferred to assail the
judgment & decree dated 17.10.2007 passed in HMA No.89/2006 by the
Additional District Judge (ADJ), Delhi, whereby the learned ADJ
dismissed the petition preferred by the appellant/husband under Section
13(1)(ia) of the HMA, seeking a decree of dissolution of marriage against
the respondent/wife on the ground of cruelty.
2. The facts as delineated in the petition are that the marriage between
the parties was solemnized on 19.05.1997 at Girdi, Bihar, according to MAT.APP. 30 /2008 Page 2 of 30
Hindu rites and ceremonies. After the customary performance of the
Gauna Ceremony on 10.12.1997, she was brought to the matrimonial
home and the marriage was consummated. No issue was born out of the
wedlock.
3. The appellant asserted three specific instances of insult and injury
against the respondent. Firstly, the appellant asserts that shortly after the
respondent’s arrival to Delhi, she started pressurizing him to move out of
the matrimonial home and live separately from his parents, but the
appellant was not agreeable. After that, her behaviour changed towards
the appellant and his family members. It is alleged that on 20.12.1997, at
around 11.00 p.m. while the parties were sleeping, the respondent,
without any provocation hit him on his eye and told him that she wants to
make him blind. He informed his parents about the incident the very next
morning. Secondly, he asserts that on 02.02.1998, one Sh. Bhim Singh
Paswan–a family friend, visited their house and the appellant asked her to
prepare tea; on this, she slapped him and told him that he deserves a slap,
not tea. He felt humiliated and remained mentally upset for days. Thirdly,
the appellant claims that on 10.02.1998, one of his relatives, Sh.
Gangadhar visited the home of the parties. The father of the appellant
requested her to get a glass of water; upon this, she told him that she is
not a maid and started misbehaving/using abusive language. He claims
that because of such erratic behaviour of the respondent, he could not
sleep for nights and suffered mental trauma. He further claims that the
appellant and his family members tried their best to keep the respondent
happy, but she was adamant on living separately from his parents. The MAT.APP. 30 /2008 Page 3 of 30
father of the respondent visited the appellant on 15.04.1998, and
informed him that the respondent did not wish to live in Delhi and wanted
a divorce. The respondent left the matrimonial home on 16.04.1998. He
asserts that the respondent and her parents did not provide him with their
address; therefore, he could not bring her back to the matrimonial home.
Thereafter, there has been no correspondence between the parties.
4. In the written statement filed by the respondent-wife, she denied all
the allegations. She claimed that the appellant and his family members
were making dowry demands. She stated that at the time of marriage, the
father of the respondent had given an amount of Rs. 3,00,000/- as dowry.
After the marriage, she was left at her parental home with an assurance
that she would soon be called to Delhi to join her matrimonial home. In
the month of November 1997, the appellant asked her to bring an amount
of Rs. 2,00,000/- if she wanted to join the matrimonial home, since the
father of the respondent had not provided sufficient dowry at the time of
the marriage. The father of the respondent paid the amount of Rs.
2,00,000/- to the father of the appellant and, thereafter, on 10.12.1997,
she was taken by the appellant to the matrimonial home. In the month of
January 1998, the father of the appellant asked her to bring an amount of
Rs.50,000/-, but she refused. Thereafter, the behaviour of the appellant
and his family members changed drastically. The family members of the
appellant started torturing her mentally. The appellant refused to perform
his conjugal duties. It is stated that on many occasions, she was
physically abused by the mother and sister of the appellant. She stated
that the appellant misappropriated her Stridhan, due to which, she filed a MAT.APP. 30 /2008 Page 4 of 30
complaint with the CAW Cell. She further stated that in the month of
April, the father of the respondent visited Delhi. He saw her poor health
condition, and requested the appellant and his family members to allow
her to accompany him to Bihar. Thereafter, she left for Bihar with her
father. In the month of July 1998, the respondent requested the appellant
to take her back to the matrimonial home, upon which, he asked her to
bring a sum of Rs.50,000/-, if she wanted to come back. On 10.12.1998,
the respondent came back to the matrimonial home along with her father
and cousin brother. She was refused entry and since then she has been
residing with her uncle in Delhi. The incidents dated 20.12.1997,
02.02.1998 and 10.02.1998 were denied. She stated that the same are
concocted.
5. In the replication filed by the appellant, he reiterated and
reaffirmed his stand. The appellant categorically denied the allegations
with regard to the dowry demands. He stated that previous complaints
filed by the respondent are false and were withdrawn by her. Thereafter,
she again filed a complaint with the CAW Cell.
6. After the issues were framed, both the parties led evidence in
support of their case. The Trial Court after assessing the evidence placed
on record dismissed the petition.
7. The Trial Court came to the conclusion that the version of the
petitioner/appellant regarding the first incident dated 20.12.1997
aforesaid was not believable, as there are contradictions in the testimonies
with regard to the date of incident, and with regard to whether the
petitioner was taken to hospital for the treatment. MAT.APP. 30 /2008 Page 5 of 30
8. In relation to the second incident dated 02.02.1998, the Trial Court
concluded that there is inconsistency and contradiction in the testimonies
of the witnesses with regard to the presence of mother and father of the
appellant at the time of the incident. The Trial Court also concluded that
Sh. Bhim Singh Paswan (PW-4) is a tutored and an interested witness. It
was further observed that the version of the petitioner/appellant is
improbable, as no one would again ask a daughter-in-law to prepare tea,
if she is already misbehaving in the manner alleged.
9. The Trial Court, in respect of the third incident dated 10.02.1998,
observed that the petitioner/appellant, in his testimony, stated that he
asked the respondent to bring a glass of water, whereas the other witness
claimed that the father of the appellant asked the respondent to get a glass
of water. It was also observed that Gangadhar (PW-5) stated that at the
time of the incident, the appellant’s sister was also present, but none of
the other witnesses stated so. The court further concluded that there are
contradictions in the statement of the petitioner/appellant with regard to
the respondent raising her hand to slap, as none of the witnesses stated the
same. Therefore, incident dated 10.02.1998 was also disbelieved.
10. The Trial Court further concluded that the letter dated 30.08.1998
(Ex. PW1/2) written by the respondent to the father of the petitioner
appears to be a letter written out of frustration. The parties had lived
together for a period of four months, which is very less to conclude that
the marriage has in any manner broken down. The Trial Court also
concluded that the dismissal of the petition filed by the respondent – for
restitution of conjugal rights under section 9 of the HMA, does not entitle MAT.APP. 30 /2008 Page 6 of 30
the petitioner/appellant to get his petition under section 13 (1)(ia) of
HMA allowed, as the same does not establish the ground of cruelty. The
Trial Court further concluded that the CAW Cell complaint filed by the
respondent cannot be considered as a ground for divorce, as the same is
still pending. Consequently, the petition was dismissed. Hence, the
present appeal.
11. Learned counsel for the appellant submits that since the very
beginning of the matrimonial relationship, the respondent started
misbehaving with the family of the appellant. The respondent started
making unreasonable demands to live separately from the parents of the
appellant. The appellant refused to live separately from his parents,
expressing that he is their only son and the only support system for his
old age parents. Thereafter, the behaviour of the respondent changed
drastically towards him and she started behaving erratically. He submits
that the specific incidents mentioned in the petition were proved by the
testimonies of the witnesses. They clearly establish that the appellant was
subjected to mental and physical cruelty by the respondent repeatedly.
12. Learned counsel submits that the Trial Court failed to appreciate
and discuss the testimony of the independent witness, i.e. Sh. Chiranjee
Lal Raghav (PW-3), the President of the Residence Welfare Association,
Paschim Vihar, New Delhi. He asserts that Sh. Chiranjee Lal Raghav has
known the appellant and his family for over 20 years. Sh. Chiranjee Lal
Raghav, in his evidence by way of affidavit, clearly stated that the present
matrimonial dispute was never about dowry demand and harassment. He
also deposed that he was present at the Police Station, Paschim Vihar on MAT.APP. 30 /2008 Page 7 of 30
05.08.1999, when the negotiation between the families of the parties were
undertaken, and the father of the respondent demanded a separate
residence for the respondent. Learned counsel submits that the testimony
of Sh. Chiranjee Lal Raghav has gone unchallenged and proves the case
of the appellant.
13. Regarding the incident dated 02.02.1998, learned counsel submits
that the testimony of the Sh. Bhim Singh Paswan (PW-4), was
disbelieved by the Trial Court merely on the ground that he stated that his
children had taken coaching from the appellant. Therefore, he was
assumed to be a tutored and an interested witness. He submits that the
Trial Court erred in concluding that he is an interested witness. This
finding is without any basis. He further submits that in matrimonial
disputes, family members, friends and neighbours are the most relevant
and natural witnesses. Therefore, Sh. Bhim Singh Paswan (PW-4) is a
credible witness. It would be inappropriate to expect an outsider to come
and depose. Reliance is placed on Vishwanath Agrawal v. Sarla
Vishwanath Agrawal, (2012) 7 SCC 288.
14. Regarding the incident of 10.02.1998, learned counsel submits that
the testimony of Sh. Gangadhar (PW-5) was disbelieved on the ground
that he claimed that his sister was present at the time of the incident,
whereas none of the other witnesses, who were examined, claimed so. He
submits that Sh. Gangadhar is an independent witness and his testimony
has gone unchallenged, and the same clearly establishes the allegation of
cruelty made by the appellant in the petition. MAT.APP. 30 /2008 Page 8 of 30
15. Learned counsel submits that the Trial Court has dismissed the
petition on the ground that there are contradictions and inconsistency in
the statements of the appellants/petitioners witnesses. He argued that the
contradictions are minor, and that the deposition should be looked at as a
whole. Minor contradiction in the testimony of witnesses, which do not
go to the root of their testimonies, and minor discrepancies are natural.
16. Reliance is placed on Ramesh Chand v. Suresh Chand, 188
(2012) DLT 538, wherein it was observed:
“8. ….A civil case is decided on balance of probabilities. In
every case, there may appear inconsistencies in the
depositions of witnesses however, the depositions have to be
taken as a whole. Minor inconsistencies which do not affect
the main substance of the case, are to be taken in correct
perspective along with the other evidences, including
documentary evidence which is led in the case. Assuming
that a witness is not stating correctly in some places does not
mean that he is to be held lying generally and hence an
unreliable witness. This is so because it has been repeatedly
said by the Supreme Court that the doctrine Falsus in Uno,
Falsus in Omnibus does not apply in India.”
17. Learned counsel submits that in the written statement filed by the
respondent, in Para 16, she stated that the mistakes committed by the
respondent during her stay at the matrimonial home were condoned by
the appellant. He submits that the acts of cruelty committed by the
respondent were never condoned, as the parties never cohabitated after
she left the matrimonial home, i.e. on 16.04.1998. She was never
reinstated to her original status.
18. He further submits that the Trial Court failed to take into MAT.APP. 30 /2008 Page 9 of 30
consideration the events subsequent to the filing of divorce petition. The
respondent filed a petition under section 9 of HMA for restitution of
conjugal rights in 2001, which was dismissed vide order dated
01.05.2003. He submits that the learned ADJ, while dismissing the said
petition, made observations against the respondent in the order, that the
respondent had put a condition, that appellant herein be directed to live
and maintain her in a separate house from his parents. The learned ADJ
came to a conclusion that in view of serious allegations, it would not be
possible for the parties to live together happily.
19. Learned counsel further submits that the Trial Court has failed to
appreciate the contents of the letter dated 30.08.1998 (Ex.PW-1/2) written
by the respondent to the father of the appellant, wherein, she has leveled
various bald and serious allegations against the family members of the
appellant. She threatened to insult the appellant and his family in public,
i.e. in front of neighbours and relatives. She also threatened to get them
arrested. In the said letter, she also stated that she has no desire to stay in
the matrimonial home.
20. Learned Counsel submits that the said conduct of the respondent
also demonstrates that she has lost respect for the appellant and the same
amounts to mental cruelty. Reliance is placed on Ravi Kumar v.
Jumlidevi, JT 2010 (2) SC 213, wherein, it was observed:
“18. It may be true that there is no definition of cruelty
under the said Act. Actually such a definition is not possible.
In matrimonial relationship, cruelty would obviously mean
absence of mutual respect and understanding between the
spouses which embitters the relationship and often leads to MAT.APP. 30 /2008 Page 10 of 30
various outbursts of behaviour which can be termed as
cruelty. Sometime cruelty in a matrimonial relationship may
take the form of violence, some time it may take a different
form. At times, it may be just an attitude or an approach.
Silence in some situations may amount to cruelty. Therefore,
cruelty in matrimonial, behaviour defies any definition and
its category can never be closed. Whether husband is cruel
to his wife or the wife is cruel to her husband has to be
ascertained and judged by taking into account the entire
facts and circumstances of the given case and not by any
pre-determined rigid formula. Cruelty in matrimonial cases
can be of infinite variety - it may be subtle or even brutal
and may be by gestures and words. That possibly explains
why Lord Denning in Sheldon v. Sheldon (1966) 2 All E.R.
257 held that categories of cruelty in matrimonial cases are
never closed.”
21. He further submits that the respondent, with an intention to harass
the appellant, embroiled him in malicious litigation by moving an
application under section 12 of Domestic Violence Act, 2005 on
24.07.2010 and filed a petition under section 125 Cr.P.C. on 13.04.2011.
Both the cases filed by the respondent were dismissed in default for non
prosecution on 19.02.2015 and 24.11.2014, respectively. In these
petitions, the respondent made serious baseless allegations against the
appellant. He further submits that even the present appeal had been
adjourned for more than 5 year, on one pretext or the other, by the
respondent. The said approach and subsequent conduct of the respondent
clearly tantamount to mental cruelty. Reliance was placed on Vishwanath
Agrawal (Supra), wherein, the Supreme Court has held that events
subsequent to filing of the divorce petition can be taken into
consideration. MAT.APP. 30 /2008 Page 11 of 30
22. Learned counsel submits that the facts of the present case
demonstrate the mental pain and agony suffered by the appellant due to
the conduct of the respondent during her stay at the matrimonial home,
and after she left the matrimonial home. Reliance is placed on Samar
Gosh v. Jaya Gosh (2007) 4 SCC 511, wherein the Supreme Court, while
dealing with mental cruelty, laid down the following guidelines:
“101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some
instances of human behaviour which may be relevant in
dealing with the cases of “mental cruelty”. The instances
indicated in the succeeding paragraphs are only illustrative
and not exhaustive:
(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not
make possible for the parties to live with each other could
come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial
life of the parties, it becomes abundantly clear that situation
is such that the wronged party cannot reasonably be asked
to put up with such conduct and continue to live with other
party.
(iii) Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it
makes the married life for the other spouse absolutely
intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by
the conduct of other for a long time may lead to mental
cruelty.
(v) A sustained course of abusive and humiliating treatment MAT.APP. 30 /2008 Page 12 of 30
calculated to torture, discommode or render miserable life of
the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one
spouse actually affecting physical and mental health of the
other spouse. The treatment complained of and the resultant
danger or apprehension must be very grave, substantial and
weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or
deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear
of the married life which happens in day-to-day life would
not be adequate for grant of divorce on the ground of mental
cruelty.
(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to
cruelty. The ill conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent
that because of the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to live with the
other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilisation without medical reasons and without the
consent or knowledge of his wife and similarly, if the wife
undergoes vasectomy or abortion without medical reason or
without the consent or knowledge of her husband, such an
act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for MAT.APP. 30 /2008 Page 13 of 30
considerable period without there being any physical
incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to
cruelty.
(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction
though supported by a legal tie. By refusing to sever that tie,
the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties. In such like situations,
it may lead to mental cruelty.”
23. Learned counsel submits that admittedly, the parties have been
living separately for more than 17 years. It is fair to conclude that the
matrimonial bond between the parties is beyond repair. He submits that
since the marriage between the parties have become fictional, therefore, it
would be wrong to support it with a legal tie. The same has led to mental
cruelty to the appellant.
24. On the other hand, learned counsel for the respondent supports the
judgment of the Trial Court. He submits that the judgment is based on
correct appreciation of evidence, and does not suffer from any infirmity,
much less any perversity.
25. I have carefully considered the submissions of learned counsel
for the appellant and perused the record laid in the case, including the
impugned judgment.
26. The submissions of the learned counsel for the appellant are MAT.APP. 30 /2008 Page 14 of 30
threefold. Firstly, the minor inconsistency and contradictions in the
deposition of the witnesses does not change the substance of the case.
Secondly, the subsequent event and conduct of the respondent after the
filing of the divorce petition has amounted to mental cruelty. Thirdly, the
matrimonial bond between the parties is beyond repair and that itself has
caused, and continues to cause mental cruelty to the appellant. Therefore,
it would be wrong to support it with a legal tie.
27. In relation to the incident dated 20.12.1997 (when the respondent
allegedly slapped the appellant on his eye), the appellant (PW-1), in his
cross examination deposed that he did not consult any doctor after the
incident as there was no visible injury on his eye. The father of the
appellant (PW-2), in his cross examination, deposed that the appellant did
visit the doctor after being hit on his eye. He also deposed that his eye
had swollen and healed after three days. The mother of the appellant
(PW-6), in her cross examination, deposed that eye of the appellant had
swollen and she took him to the nearby hospital. The contradictions in the
testimonies of the witnesses with regards to the incident dated
20.12.1997, do not inspire confidence and cannot prove the aforesaid
alleged incident. Thus, I find no reason to interfere with the finding of
the learned ADJ.
28. In relation to the incident of 02.02.1998, the Trial Court, in
paragraph 24 of the judgment observed that:
“24. The petitioner does not say that any other person were
present at the time of said incident. The father and mother of
petitioner does not say in their affidavit that they were MAT.APP. 30 /2008 Page 15 of 30
present in the house at the time of incident. When father was
asked he stated that he was present but mother stated that
apart from herself, her son, her husband and Sh. Paswan
were present. Bhim Singh Paswan is a tutored witness. He
stated that his children had taken coaching from petitioner.
There are contradictions in the testimonies of the
witnesses. Sh. Paswan stated that after the incident he
immediately left the home. There are inconsistency and
contradiction in the testimony of witness. The version is
also improbable as no one would ask a daughter-in-law to
prepare tea if she is already misbehaving in the manner
alleged. Therefore, the petitioner failed to prove this
incident also.” (emphasis supplied)
29. The appellant (PW-1), in his examination in chief stated that:
“On 2.2.98, one Bhim Singh Paswan had visited our house
and asked the respondent to prepare tea for him, at this she
slapped me, on account of which I felt humiliated. … … … .”
30. In his cross examination, he deposed that the incident of
02.02.1998 had indeed, occurred. The father of appellant (PW-2), in his
evidence by way of affidavit stated that:
“10. That on 02.02.1998 when Sh. Bhim Singh Paswan, a
family friend who has known the family from past 15 years
visited the house of the petitioner, petitioner asked the
respondent to prepare a cup of tea for Sh. Paswan, at this
respondent gave a tight slap to the petitioner right across his
face… … … .”
31. In his cross examination, PW-2 confirmed that he was present at
the time of the aforesaid incident. The mother of the appellant (PW-6), in
her evidence by way of affidavit stated on the same lines. In her cross
examination, she deposed that she was present when the aforesaid
incident took place.MAT.APP. 30 /2008 Page 16 of 30
32. Bhim Singh Paswan (PW-4), in his evidence by way of affidavit
narrated the incident on the same lines as other witnesses. In his cross
examination, he deposed that “Petr. had asked the respt. to prepare a cup
of tea. When the respt. slapped the petr... … .”
33. Perusal of the aforementioned testimonies reveals that the finding
returned by the Trial Court with respect to the incident of 02.02.1998, is
completely erroneous. There is no contradiction in the testimonies of the
witnesses with respect to the presence of each of the witnesses at the time
when the incident occurred. It is correct that the appellant (PW-1), PW-2
and PW-4 did not state in their respective evidence by way of affidavit,
with respect to their own presence. However, in their cross examination,
they all have stated that they were present at the time of incident. It
cannot be appreciated how Bhim Singh Paswan (PW-4) could be
construed to be a tutored and interested witness, merely because his
children took coaching from the appellant. Obviously, it is acquaintances
of the family, and family members who would be present in the house,
and if any incident takes place, it is they who would witness the same. In
Vishwanath Agrawal (supra), the Supreme Court, inter alia, observed:
“39. … … At this juncture, we may unhesitatingly state that
the trial court as well as the first appellate court have
disbelieved the evidence of most of the witnesses cited on
behalf of the husband on the ground that they are interested
witnesses. In a matrimonial dispute, it would be
inappropriate to expect outsiders to come and depose. The
family members and sometimes the relatives, friends and
neighbours are the most natural witnesses. The veracity of
the testimony is to be tested on objective parameters and not
to be thrown overboard on the ground that the witnesses are
related to either of the spouse. …”MAT.APP. 30 /2008 Page 17 of 30
34. Upon perusal of the testimony of PW-4, it is clear that the same is
unimpeached. No evidence has been brought on record to show that PW-
4 was an interested witness. The respondent did not even suggest to the
witness (PW-4) that he was under the control of – functionally or
psychologically, or indebted to the appellant – financially, emotionally, or
morally, to depose falsely in his favour. He was not obliged to depose
falsely on oath for any particular reason. His testimony is corroborated
that of the other witnesses, viz. PW-1, PW-2, PW-6.
35. The said incident has been held to be “improbable” in view of the
respondent already misbehaving in a similar manner. However, it was
not the case of the appellant, that a similar incident had taken place
earlier. The earlier incident related to the alleged injury caused to the eye
of the appellant, which had been disbelieved. Even otherwise, merely
because a family member may have misbehaved on an earlier
occasion(s), is no reason to conclude, that such member would never be
called upon to discharge the obligation that the person can reasonably be
expected to discharge as a member of the family. Being the daughter-inlaw
and a housewife it would not have been unusual for the appellant and
his family members to ask the respondent to prepare tea for a guest/
acquaintance who has visited the family.
36. The mere omission on the part of the witnesses to mention as to
who all were present at the time of the incident, cannot be treated as a
contradiction. It is not that while one witness states that a particular
person was present, the other witness(es) deny that position. Pertinently,
in their cross-examination, none of the witnesses to the incident of MAT.APP. 30 /2008 Page 18 of 30
02.02.1998 were asked as to who all were present. In fact, (PW-6) – the
mother of the appellant had deposed that “Apart from myself and the
petitioner Bhimsen Paswan and my husband were present at that time in
the house.” Thus, the finding of the learned ADJ on the incident of
02.02.1998 is patently laconic as it is premised on a misplaced approach.
37. With respect to the incident of 10.02.1998, the Trial Court, in
paragraph 30 of the judgment observed that:
“30. Petitioner claimed that he had asked respondent to
bring glass of water. Whereas other witness claimed that
father of petitioner had asked respondent to bring water.
PW5 claimed that sister of petitioner was also present at
time of incident whereas none of the other witnesses
examined claimed so. Further petitioner stated that
respondent had raised hand to slap him but this is not stated
by any other witness who claimed to be present at time
incident. Therefore, there are inconsistency in the testimony
of witnesses on material point. Their (sic.) version is also not
probable and believable. Therefore, petitioner has failed to
prove this incident.”
38. The appellant (PW-1) in his examination in chief stated that:
“On 10.2.98, one Ganga Dhar had visited my house, who is
my cousin brother. In his presence I asked to the respdt. To
serve me a (sic.) glass of water, at this she humiliated me by
showing her hand to slap (sic.) me. She (sic.) also used filthy
language for myself and my parents.”
39. In his cross examination, he deposed that “It is incorrect to suggest
that no incident dated 10/2/98 as deposed by me in my chief examination
dated 12/7/02 took place.”
40. The father of the appellant (PW-2), in his evidence by way of MAT.APP. 30 /2008 Page 19 of 30
affidavit stated that:
“11. That again on 10.02.1998 when Sh. Gangadhar one of
the relative of the petitioner had visited the house of the
petitioner the deponent requested the respondent to bring a
glass of water for Mr. Gangadhar as she was around, but
respondent gave a very rude reply to the deponent that
respondent is not deponent’s servant and abused petitioner,
deponent and his family members in filthy language in
presence of Sh. Gangadhar, just in order to humiliate them.”
41. In his cross examination, he deposed that:
“Sh. Ganga Dhar is my wife’s sister’s son. I was present at
the time when Sh. Ganga Dhar visited on 10.2.98. As only I
had requested the respondent to get a glass of water for Sh.
Ganga Dhar. It is wrong to suggest that after the incident of
2.2.98, I would not have asked the respondent for a glass of
water on 10.2.98. At the time of incident of 10.2.98, besides
me, petitioner was also present. It is wrong to suggest that
no such incident as narrated by me in my affidavit happened
on 10.2.98.”
42. The mother of the appellant (PW-6), in her evidence by way of
affidavit stated on the same lines as that of PW-2. In her cross
examination, he deposed that:
“I was present in my house on 10.2.98 when Sh. Gangadhar
visited our (sic.) house. At that time besides me, my husband
and my son too were present. Gangadhar is son of my sister.
It is correct that despite the fact we knew the background
and character of respondent my husband asked the
respondent to bring a glass of water for him. It is incorrect
to suggest that no such incidence as narrated by me in para
12 of the affidavit had happened on 10.2.98.”
43. Gangadhar (PW-5), in his evidence by way of affidavit stated that:MAT.APP. 30 /2008 Page 20 of 30
“3. That on 10.2.1998 when the deponent visited the house
of the Petitioner, Petitioner’s father requested the
respondent to get a glass of water for the deponent but the
respondent gave a very rude reply to him that she is not his
servant and abused Petitioner and all his family members in
filthy language in presence of the deponent.”
44. In his cross examination, he deposed that:
“In the month of February 1998, date I do not remember. I
went to the house of my Mausaji. At the time, besides me, my
Mausaji, my Mausi, my sister were present in the house. …
… . By sister I mean my Mausi’s daughter. … … . The
incident which I have narrated in para 3 of my affidavit took
place soon after we reached the house. … … . It is incorrect
to suggest that no incident has narrated by me in para 3 of
the affidavit took place within my presence … … .”
45. Perusal of the aforementioned testimonies reveals that the finding
returned by the Trial Court with respect to the incident of 10.02.1998, is
also completely erroneous. PW-2, PW-6 and PW-5 all state that it was
PW-2 who asked the respondent to bring a glass of water for PW-5.
When a relative or guest visits a household, it is customary in our country
to offer him/ her a glass of water to begin with, soon after the arrival. On
the arrival of the guest, that is the normal reaction and expected
behaviour of the host. Thus, it is not unusual that more than one of the
family elders may ask for a glass of water for a guest. Thus, whether,
only PW-2 asked for the glass of water, or both PW-1 and PW-2 asked
for it (for the guest PW-5) is immaterial. The fact that the respondent was
asked for a glass of water for the guest Gangadhar on 10.02.1998, and the
respondent behaved in the manner narrated by these witnesses, stands
established from the aforementioned testimonies. Gangadhar (PW-5) MAT.APP. 30 /2008 Page 21 of 30
deposed that apart from the appellant, PW-2, and PW-6, the sister of the
appellant was also present. All the other witnesses did not state with
regard to the presence of the sister of the appellant. Perusal of the
testimonies of PW-1, PW-2, PW-6 reveals that no question was put to the
witnesses in their cross examination with respect to the presence of other
family members at the time of the incident. Therefore, the same cannot be
construed as a contradiction. The appellant (PW-1) had deposed that the
respondent had raised her hand to slap him, and abused in filthy language.
PW-2, PW-5 and PW-6 deposed that the respondent abused in filthy
language when asked for a glass of water. However, they did not depose
that the respondent raised her hand to slap the appellant. In my view, the
same is not a contradiction, and at the highest, may be an exaggeration.
No specific question was put to PW-2, PW-5 and PW-6 with respect to
the respondent raising her hand to slap the appellant. They did not have
the opportunity to deny or affirm the same. Therefore, the aforesaid
ambiguities in the testimonies of the witnesses do not render the
testimonies unreliable. In any event, even if it were to be accepted that
the respondent did not raise her hand to hit the appellant, but only reacted
by hurling filthy abuses and not getting the water, that by itself,
constitutes a matrimonial offence.
46. It may also be noted that the testimonies of PW-2, PW-4, PW-5
and PW-6 were recorded between 2005 to 2007, i.e. after 7-9 years of the
said incidents. It is natural for certain discrepancies to occur in the
testimonies of witnesses when their testimonies are recorded after a lapse
of several years due to fading memories. It is also a settled position that MAT.APP. 30 /2008 Page 22 of 30
minor discrepancies in the testimonies of witnesses, which do not strike
to the root of the case, can be ignored. Reference may be made to
Ramesh Chand (supra). Thus, the findings of the learned ADJ regarding
the incidents of 02.02.1998 and 10.02.1998 are completely erroneous and
cannot be sustained. The same are, accordingly, reversed. This Court is
of the view that these matrimonial offences are sufficiently proved.
47. In the written statement filed by the respondent, there is no
mention of any specific incident of physical abuse by the appellant or his
family member during her stay at the matrimonial home. It is pertinent to
note that the respondent did not file any complaint with respect to alleged
dowry demand or ill treatment, to any authority, during her stay at the
matrimonial home.
48. The respondent wrote a letter to the father of the appellant dated
30.08.1998 (Ex.PW-1/2). The relevant portion of the said letter is as
under:
“… … mera rehne ka mood nahi hai? Agar main wahan
rehna chahu to kisi ki himmat nahi hai ki mujhe rok de.
Mere rehne ke layak to aapka ghar hai bhi nahi. … … … .
Mein fridge lock karke aagayi toh sabko khalbali maach
gayi, aur choti choti baaton per jab maazi mere saaman ko
bhar kar room mein tala laga deti thi. Mein jab fridge mein
kutch rakhti thi, toh fridge off kar kitchen ki khidki ke paas
khiska kaar rakh diya zata tha. Mein kamre mein light, fan
on nahi kar sakti thi. Mere liye uss ghar mein goodnight
nahi tha, tab kissi ko kutch bura nahi lagta tha. Haar kissi se
meri shikayat karke aur mujhe badnaam karke aap kya
ghava aur saboot ikatha karna chahte hain? Koi saath nahi
dega aapka. Aapne aap ko aap zayada hoshiyaar aur
chalak mat samajhiye. Jab mein mooh kholungi toh jante MAT.APP. 30 /2008 Page 23 of 30
hai ki kya hoga? Dhajjiyan udd jayengi app logo ki. Apne
bete ka durgun aur kamzoori choopa kaar shaadi karwa
diya, taaki koi yeah na keh sakey ki ladka kuwara reh
gaya. Abb bahu ko rakhne se ghabrate hain aur bahane
banate hai ki, mein apke bete ko marti hu. Ek darje ke neech
aadmi hain aap log. Jo suntan hai wahi hasta hain… … … .
Meri himat ki kya baat karte hai aap? Mein toh aap logo
ko hatkadiya bhi lagwa sakti thi. Aap yeh mat samjhiye ki
aap logo ki mein mohtaj hun…. … … .
Main to sirf ek baar aapke bete ke muh se sun lena chahti
hun ki vo kya chahte hain? Mujhe rakhna chahte hain ya
nahi. Fir to mai sabko dhool chatva dungi. … … .
Aap logon ne kabhi mujhe bahu ka darza nahi diya. Apne
bete ko jaanbujkar mujse dur dur rakhte the. Aap logon ki
chaal mai khub samajti thi. Isi baat par ghaseet dungi aap
logo ko. Aapka beta to apne demag se apni patni ke liye
na kuch soch sakta hai, na kuch kar sakta hai. Unke paas to
nah dil hai, nah demag hai, na mardangi. … … .
Agar aap log aisi hi harkat karte rahe to aisi hi chitthi mai
apke padosi ko bhi likh sakti hun aur apke jitne jaan
pehchaan wale hain, jinhe mai bhi jaanti hun, unke naam
se bhi likhungi. .. .. . (emphasis supplied)
49. The trial court overlooked this letter by concluding that:
“This letter if read in totality appears to be a letter written
under frustration”.
50. A perusal of letter Ex.PW-1/2, no doubt, shows that the same was
written by the respondent to the father of the appellant out of frustration.
The same clearly shows that there were differences and bickering
between the respondent on the one hand, and the appellant and his family
members on the other hand, while the respondent was residing with the
appellant at her matrimonial home. This letter also shows that the MAT.APP. 30 /2008 Page 24 of 30
respondent was keen to restore cohabitation with the appellant.
51. At the same time, this letter also shows that the respondent had
little or no respect either for the appellant or his parents, and she did not
hesitate to express her disrespect for them on their face. She did not
mince her words while conveying that she holds the appellant and his
family members in very low esteem. A spouse who is keen to restore the
matrimonial relationship – and more so when that spouse is the female in
the Indian context, cannot be reasonably expected to write a letter full of
condemnation and threats to her father-in-law, of the kind Ex.PW-1/2 is.
The letter Ex.PW-1/2 betrays the pent up anger and frustration of the
respondent. It also shows that the respondent had revolted against the
appellant and his family members. No doubt, in a given situation such a
revolt by a spouse may even be justified. However, unfortunately for the
respondent, she has not led any evidence to show as to what were the
circumstances that she had to face, while residing with the appellant in
the matrimonial home, which gave rise to the issuance of the letter
Ex.PW-1/2.
52. The kind of threats conveyed and expressions used in relation to
the appellant and his father by the respondent in this communication
cannot be justified, and would have caused considerable pain, agony and
suffering to the appellant and vitiated the matrimonial bond between the
parties. To address her father-in-law as one who considers himself
“hoshiyaar aur chalak”, i.e. clever and cunning, is not done. Similarly, it
is not done for a daughter-in-law to issue a threat that when she will
speak, “Dhajjiyan udd jayengi app logo ki”. To call the appellant and his MAT.APP. 30 /2008 Page 25 of 30
family members “Ek darje ke neech”, tantamount to use of highly
insulting and derogatory language. She also conveyed the threat that she
could even embroil the appellant and his family members in a criminal
case and get them imprisoned. This is evident from her statement when
she says “Mein toh aap logo ko hatkadiya bhi lagwa sakti thi”. She again
repeats the threat that she would take the appellant and his family
members to task, by stating “Fir to mai sabko dhool chatva dungi” and
“Isi baat par ghaseet dungi aap logo ko”. The respondent clearly held
the appellant in very low esteem. In relation to the appellant, she stated
“Unke paas to nah dil hai, nah demag hai, na mardangi”. In fact, she
challenged the manhood of the appellant.
53. Ultimately, she even threatened to write a similar letter as Ex.PW-
1/2 to the neighbours and acquaintances of the appellant and his family
members so as to run down the appellant and his family members, if they
continued to conduct themselves in the same way.
54. The communication Ex.PW-1/2, in my view, cannot be passed off
as one written out of frustration and nothing more. The respondent
repeatedly issued threats in this communication to the appellant and his
family members, apart from insulting them and running them down. In
the face of such a communication, the appellant would have been justified
in entertaining a serious apprehension that it would not be safe for him to
cohabit with the respondent. The said communication, i.e. Ex.PW-1/2
would have caused acute mental pain, agony and suffering to him, and the
appellant could not be reasonably asked to put up with such conduct and
live with the respondent. The parties lived together under one roof for a MAT.APP. 30 /2008 Page 26 of 30
very short duration, i.e. for about four months, and within that period
itself, at least two matrimonial offences (taken note of hereinabove on
02.02.1998 and 10.02.1998) occurred, which clearly stand established on
record. When the letter Ex.PW-1/2 is viewed in the light of the incidents
dated 02.02.1998 and 10.02.1998, in my view, what emerges is that the
respondents conduct was such that the parties could not have lived
peacefully and happily on a sustained basis. The conduct of the
respondent would have reasonably given rise to acute mental pain, agony
and suffering to the appellant and his family members on a sustained
basis, and the appellant cannot reasonably be asked to put up with such
conduct and live with the respondent. Pertinently, even though in her
defence the respondent stated that the appellant and his family demanded
dowry, there is not a whisper in the communication Ex.PW-1/2 in that
respect.
55. The allegations made by the respondent in the petition under
Section 12 of the Protection of Women from Domestic Violence Act,
2005 (preferred in July 2010, i.e. after the institution of the divorce
petition), insofar as they are relevant, read as follows:
“3. That the behavior of the respondent and his family
members towards the petitioner was abhorrent and she was
taunted on account of bringing less dowry. The respondent
also joined hands with his parents in causing mental
harassment to her and he with a view to hurt the petitioner’s
feelings refused to perform conjugal duties. The respondent
at the behest of his parents used to lock her up in dark
room without providing any food. The respondent had
misappropriated the jewelary and other items of the
petitioner due to which the petitioner had filed the complaint MAT.APP. 30 /2008 Page 27 of 30
against the respondents and his family members with CAW
Cell, Nanakpura, Delhi, which ultimately resulted into
registration of FIR bearing No.695/99 u/s 406/498-A IPC at
P.S. Paschim Vihar.
x x x x x x x x x
5. That in the month of July, 1998, when the petitioner
requested the respondent to take her to Delhi, the
respondent told her not to come back and also stated that if
the petitioner wants to come back, she will have to bring
Rs.50,000/- as demanded by his father. Instead of taking
her back to matrimonial house, the respondent had filed a
false and frivolous divorce case against the petitioner which
was ultimately dismissed on merits.” (emphasis supplied)
56. As noticed above, the respondent let the said proceedings be
dismissed for want of prosecution. She did not make good the aforesaid
allegations against the appellant, and his family members. A party, who
makes serious allegations in legal proceedings against the opposite party,
and drags the opposite party to face such legal proceedings, must take
responsibility for the same and such a party cannot be permitted to walk
away by subsequently allowing the proceedings to be dismissed in
default, or for want of prosecution. No party can be permitted to abuse
the process of law by filing proceedings on the basis of allegations, to
establish which, no effort has been made when the time comes. The
implication of such conduct of the respondent is that the allegations,
when made, were known to the respondent to be concocted, and were
made to harass the appellant and exploit the provisions of law. When she
made the allegations and dragged the appellant to Court (as threatened by
her in Ex PW1/2), she must have been conscious about the pain, agony MAT.APP. 30 /2008 Page 28 of 30
and suffering to which the appellant would be subjected.
57. Thus, I am of the view that the aforesaid proceedings under the
Protection of Women from Domestic Violence Act, 2005 was a contrived
afterthought, and was completely “ill advised”. The same was a false
complaint filed by the respondent-wife knowingly and intentionally
calculated to embarass the appellant and his family members. The filing
of such a false and frivolous complaint tantamount to causing mental
cruelty to the appellant and putting him in fear of his well being, if he
restored conjugal relationship with the respondent.
58. It is well-settled that filling of false criminal complaints against a
spouse amounts to cruelty as postulated in section 13(1)(ia) of HMA.
Reference can be made to the case of K. Srinivas v. K. Sunita, (2014) 16
SCC 34, wherein the court has observed as follows:
“4. In the case in hand, the learned counsel for the
respondent wife has vehemently contended that it is not
possible to label the wife’s criminal complaint detailed
above as a false or vindictive action. In other words, the
acquittal of the appellant and his family members in the
criminal complaint does not by itself, automatically and
justifiably lead to the conclusion that the complaint was
false; that only one complaint was preferred by the
respondent wife, whereas in contradiction, in K. Srinivas
Rao a series of complaints by the wife had been preferred.
The argument was premised on the averment that the
investigation may have been faulty or the prosecution may
have been so careless as to lead to the acquittal, but the
acquittal would not always indicate that the complainant
had intentionally filed a false case. What should be kept in
perspective, it is reasonably, that the complainant is not the
controlling conductor in this orchestra, but only one of the MAT.APP. 30 /2008 Page 29 of 30
musicians who must deliver her rendition as and when she is
called upon to do. Secondly, according to the learned
counsel, the position would have been appreciably different
if a specific finding regarding the falsity of the criminal
complaint was returned, or if the complaint or a witness on
her behalf had committed perjury or had recorded a
contradictory or incredible testimony. The learned counsel
for the respondent wife states that neither possibility has
manifested itself here and, therefore, it would be unfair to
respondent wife to conclude that she had exhibited such
cruelty towards the appellant and her in-laws that would
justify the dissolution of her marriage.
5. The respondent wife has admitted in her crossexamination
that she did not mention all the incidents on
which her complaint is predicated in her statement under
Section 161 CrPC. It is not her case that she had actually
narrated all these facts to the investigating officer, but that
he had neglected to mention them. This, it seems to us, is
clearly indicative of the fact that the criminal complaint
was a contrived afterthought. We affirm the view of the
High Court that the criminal complaint was “ill advised”.
Adding thereto is the factor that the High Court had been
informed of the acquittal of the appellant husband and
members of his family. In these circumstances, the High
Court ought to have concluded that the respondent wife
knowingly and intentionally filed a false complaint,
calculated to embarrass and incarcerate the appellant and
seven members of his family and that such conduct
unquestionably constitutes cruelty as postulated in Section
13(1)(ia) of the Hindu Marriage Act.
6. Another argument which has been articulated on behalf of
the learned counsel for the respondent is that the filling of
criminal complaint has not been pleaded in the petition
itself. As we see it, the criminal complaint was filed by the
wife after filling of the husband’s divorce petition, and
being subsequent events could be looked into by the court.
In any event, both the parties were fully aware of this facet 
of cruelty which was allegedly suffered by the husband.
When evidence was led, as also when arguments were
addressed, objection had not been raised on behalf of the
respondent wife that this aspect of cruelty was beyond the
pleadings. We are, therefore, not impressed by this argument
raised on her behalf.
7. In these circumstance, we find that the appeal is well
founded and deserves to be allowed. We unequivocally find
that the respondent wife had filed a false criminal
complaint, and even one such complaint is sufficient to
constitute matrimonial cruelty.” (emphasis supplied)
59. Though the proceedings under the Domestic Violence Act, 2005
are not criminal proceedings, in my view, the principle laid down by the
Supreme Court in K. Srinivas (supra) is equally applicable to such
proceedings. What is relevant is that the appellant was subjected to legal
proceedings on the basis of false and unsubstantiated allegations, which
would have caused embarrassment to the appellant and his family
members.
60. In view of the aforesaid discussion, I am of the view that the
respondent has treated the appellant with cruelty entitling him to a decree
of divorce under Section 13(1)(ia) of the HMA. Accordingly, the appeal
is allowed and the marriage between the parties stands dissolved. Parties
to bear their own costs.
VIPIN SANGHI, J
MAY 23, 2016
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