Thursday, 1 September 2016

Whether Seeking restitution of Conjugal rights after 13 years of separation is bonafide?

 In the facts of instant appeals there is a role reversal to the extent that
accusations are made against the respondent/husband which had the
disastrous effect on him to the extent that he had to leave his village and
settled in Rajasthan. Perhaps he has taken this step to save the matrimonial
life of his own brother as he was accused of having living in adultery with
his wife. As per the settled legal position casting aspersion of such nature 
had the deleterious effect on the mind of her husband which can be termed
as one of the worst form of mental cruelty.
28. So far as dismissal of the petition and seeking restitution of conjugal
rights are concerned, it was the appellant who had left the matrimonial home
in the year 1998 for her delivery at her parent’s home and then in the year
1999 in the company of her family members. No complaint of any physical
violence, harassment of dowry demand or any other reason compelling her
to leave the matrimonial home was made by her soon after leaving the
matrimonial home. She was residing independently in Delhi leaving her
daughter at her parental home.
29. The prayer of the appellant/wife for restitution of conjugal rights has
rightly been declined by learned Judge Family Court in the given facts and
circumstances. In the decision reported as (1994) 1 SCC 337 V.Bhagat Vs.
D.Bhagat it was held as under:-
“A mental cruelty under Section 13(1)(ia) can 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. It is held that mental cruelty must be of
such a nature that the parties cannot reasonably be expected to
live together. It is also held that 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. In my
view the said judgment clearly applies to the facts of this case.”
30. Even otherwise filing of a petition seeking restitution of conjugal
rights in the year 2012 i.e. after 13 years of leaving the matrimonial home
does not seem to be a bonafide act on her part for the re-union. That too with
the background already litigating with the respondent by filing a petition
under Protection of Women from Domestic Violence, 2005 as well for
maintenance much prior to that. In the given facts, learned Judge, Family
Court has rightly dismissed her petition seeking restitution of conjugal 
IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment Delivered on: August 31, 2016
MAT.APP.(F.C.) 137/2015
SUDESH ...
versus
SURESH SOLANKI ....
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
Dated:AUGUST 31, 2016


1. By this common order we intend to dispose of the two matrimonial
appeals filed by the appellant/wife challenging the order dismissing
HMA Petition No.154/2012 filed by her under Section 9 of the Hindu
Marriage Act, 1955 and granting the decree of dissolution of marriage in
Counter Claim bearing HMA No.232/2013 filed by the respondent/husband
alongwith the written statement to HMA Petition No.154/2012.
2. The undisputed case of the parties is that they got married on
April 20, 1994 as per the Hindu rites and customs. The marriage was
consummated and a female child was born to the parties on
February 17, 1999. At that time the appellant/wife was at her parental home.
3. There is some dispute on the issue as to whether the
respondent/husband and his family visited her parental home to see the child
or not. While the appellant/wife claims that none came to see the child as
they were not happy on birth of a female child, the respondent/husband
claims that he along with his family members went to see the child but they
were humiliated and insulted. However, it is not disputed that after the birth
of the child the appellant/wife returned/brought back to her matrimonial
home in Palam village along with their child.
4. The appellant/wife stayed at the matrimonial home somewhere in the
year 1999 till she along with her cousin returned to her paternal home with
her daughter. Her grievance is that thereafter her husband never cared to
enquire about their welfare or made any effort to bring them back. The
reason behind is claimed to be the illicit relationship between her husband
and her ‘Jethani’ namely Smt.Diwan.
5. In the year 2012, she filed a petition under Section 9 of the Hindu
Marriage Act, 1955 praying for restitution of conjugal rights. Her husband
filed a counter-claim for dissolution of marriage on the ground prescribed
under Section 13(1)(ia) and 13(1)(ib) (cruelty and desertion) of the Hindu
Marriage Act, 1955.
6. Learned Judge, Family Court vide the impugned judgment dismissed
the petition of the appellant/wife. The counter-claim filed by the
respondent/husband was allowed by dissolving their marriage by a decree of
divorce on the ground of mental cruelty mainly for the following reasons:
(i) There are material contradictions in the testimony of the prosecution
witnesses namely PW-1 the appellant/wife, PW-2 her father Balbir Singh
and PW-3 Kuldeep Singh Chikara her cousin, as to when and to whom she
disclosed about the illicit relationship between her husband and his
‘Bhabhi’.
(ii) There was no allegation of illicit relationship between
respondent/husband and his ‘Bhabhi’ when the appellant/wife lodged her
first complaint at PS Dwarka on September 27, 2006 wherein the allegations
against the husband were only for harassment on account of non-fulfilment
of dowry demand.
(iii) The version of the appellant/wife (PW-1) that she herself left the
matrimonial home for her delivery at her parent’s house, disproves her case
that she was forcibly turned out of the matrimonial home by her husband
and other family members.
(iv) The appellant/wife has stated that she had been residing at Karol Bagh
at the house of Sanjay Gupta from 2007 to 2011. PW-2 father of the
appellant/wife in his cross-examination has that she had taken a premises on
rent even prior to 1998 in Uttam Nagar.
(v) Her testimony about meeting the dowry demand by her father by
giving `2 lakhs was not even supported by PW-2 her father Balbir Singh.
(vi) There was no material to prove her case for seeking restitution of
conjugal rights which was dismissed.
(vii) Taking into consideration all allegations of illicit relationship between
her husband and his ‘Bhabhi’ with no material to support the same, the
respondent/husband succeeded in making out a case of causing mental
cruelty. Thus, counter-claim was allowed.
7. Assailing the order of the Family Court, Ms.Gargee Dixit, learned
counsel for the appellant/wife submitted that right from the day of her
marriage, her husband ignored her and continued to have illicit relationship
with his ‘Bhabhi’. It was not mere suspicion of the appellant/wife as one
day she chased him and found him in compromising position with his
‘Bhabhi’. Thereafter her husband and other family members sent her to her
paternal home. Learned counsel for the appellant/wife has contended that
her husband and in-laws never wanted her to give birth to a male child so
that the inheritance rights of two sons of his ‘Jeth’are not adversely affected.
The appellant/wife was also harassed for giving birth to a female child.
Neither her husband nor his family visited her parental house despite being
intimated about the birth of a daughter. Learned counsel for the appellant
justified her conduct of leaving the matrimonial home with her cousin
submitting that she was not able to bear the cruel treatment meted out to her
by her husband and in-laws for objecting to his illicit relationship with his
‘Bhabhi’. The conduct of her ‘Jeth’was objectionable as instead of checking
them he asked her to sleep with him. She left the matrimonial home along
with her cousin in the year 1999. Thereafter she was never brought back to
the matrimonial home. It has been contended that it was a case of desertion
and cruelty committed by the husband. Despite that wrong doer has been
given benefit of his own wrong by dissolving the marriage. The
appellant/wife wanted the matrimonial ties to be re-united and for that
purpose she filed a petition for restitution of conjugal rights which has been
dismissed.
8. Opposing the two appeals, Mr.Tara Chand Gupta, Advocate
appearing on behalf of the respondent/husband submitted that it was not a
case of harassment on account of dowry demand. There was no issue over
birth to a female child. Learned counsel for the respondent/husband
submitted that the appellant/wife defamed her husband and his entire family
in the village bringing disrepute to them. This compelled the
respondent/husband to leave his village and shift to Jaipur where he is
residing for last many years.
9. It is admitted case of the appellant/wife that she had been residing
separately since the year 1999 when she left the matrimonial home with her
cousin.
10. Till September 27, 2006 the appellant/wife did not file any complaint
against her husband or in-laws about she being harassed on account of
bringing insufficient dowry or for giving birth to a daughter or her husband
living in adultery.
11. For the first time she filed a complaint before the SHO, Sector-23,
Dwarka giving the caption of being harassed on account of dowry demand.
In the said complaint while mentioning the fact of being married to Suresh
on April 20, 1994 and birth of a daughter after two years of the marriage,
she has levelled the following allegations:
(i) She was taunted by her husband Suresh, ‘Jeth’Ramesh and ‘Jethani’
Smt.Diwan for giving birth to a daughter.
(ii) She was asked to bring `5 lakhs from her father which was spent by
her in-laws on the marriage or she and her daughter would not be allowed to
stay in the house.
(iii) She was harassed by all of them to the extent that one day she was
forced to consume ‘phenyl’ and was removed to hospital in unconscious
state by her neighbours. Her father was informed telephonically.
(iv) She had been facing this humiliation for the past eight years.
(v) She informed her father about the demand of `5 lakhs but he was 
unable to meet this entire demand. He gave `2 lakhs to her which she
handed over to her husband, ‘Jeth’and ‘Jethani’ in instalments and now they
are asking for more which she cannot bring.
(vi) She has been turned out of the house after giving beating to her. For
the last many years she has been residing with her father and bringing up her
daughter for which his parents are bearing the expenses.
(vii) Her husband has not come to take her back on instruction of her
‘Jeth’and ‘Jethani’ who do not want her to live in the matrimonial home.
(viii) Once or twice her relations and brother accompanied her to the
matrimonial home to drop her there but all of them were abused and pushed
out of the house.
(ix) She sought justice for her and punishment to the dowry greedy inlaws
as well save and secure the life of her daughter.
12. The appellant/wife has nowhere disclosed the action taken on above
complaint but it can be inferred from the record that no FIR was registered
on the basis of the above complaint. Since for disposal of these two appeals
the limited purpose for which this complaint is relevant, is absence of
allegation of illicit relationship between her husband and ‘Jethani’.
13. In the complaint filed in the year 2009 under Section 12 of Protection
of Women from Domestic Violence, 2005, for the first time allegations were
made in para 2(i) about unsocial rather cruel behaviour of the husband,
which reads as under:
‘2(i) That the behavior of respondent No.1 towards the
applicant/wife was unfriendly, unsocial rather cruel since the very
night of their honey-moon night. It is the applicant/wife who has
been tolerating such un-social behavior of the respondent No.1 for
the sake of the honour of her marital life and for the future
prospects of their minor daughter (Miss Dipanshi).’
14. In para 2(j) of the complaint, she pleaded as under:
‘2(j) That when the applicant/wife came to know about the
continuous illicit relationships of her husband (respondent No. 1)
with her sister-in-law (Bhabhi) namely Smt.Diwan before the
marriage of the applicant/wife and found that it was the sole root
cause of his such abnormal behaviour towards the applicant/wife,
she tackled the situation carefully and cautiously to save the
honour of her marital relations, but instead of mending his
behavior, he became violent towards the applicant/wife. Seeing no
other options, she used to go to her parents for the sake of the
honour and prestige of her in-laws (Sasural) hoping meanwhile he
will mend his behavior but of no avail.’
15. In the petition under Section 125, Cr.P.C. seeking maintenance for
herself and her daughter filed in the year 2010, she repeated the allegation
about the illicit relations between her husband and ‘Bhabhi’.
16. Thus from the record it is clear that despite the parties living
separately since the year 1998/1999 when for the first time on September 27,
2006 the appellant/wife lodged a complaint at PS Dwarka, no allegation was
made by her against her husband for living in adultery with his ‘Bhabhi’.
The entire complaint is focused on dowry demand and pressurizing her to
bring `5 lacs from her parents spent by in-laws on their marriage out of
which she allegedly paid `2 lacs in instalment to her husband and in-laws.
The fact that no FIR under Section 498-A/406 IPC was registered on the
basis of complaint dated September 27, 2006, we may infer that such
allegations were not substantiated during investigation in the said complaint.
17. The respondent has been accused of living in adultery for the first
time in the year 2009 in petition under Domestic Violence Act filed in the
year 2009 despite the fact that at that time the parties have been living
separately for the past eleven years (she finally left matrimonial home in the
year 1999). The evidence led by the appellant/wife in the petition under 
Section 9 of Hindu Marriage Act, 1955 and in her defence to the counter
claim seeking dissolution of marriage on account of mental cruelty, no
material could come on record to prove the said accusations even on
probabilities.
18. The appellant/wife in her affidavit Ex.PW1/A in this regard has stated
the following facts:
(i) After her marriage she was not brought to the matrimonial home for
about a period of five months. After intervention of the mediator she was
taken to her matrimonial home.
(ii) After 8-10 days her ‘Jethani’ asked her husband to sleep upstairs
which was complied by him which created suspicion in her mind.
(iii) Para 11 of the affidavit is to the following effect:-
“11. That I state that being suspicious about the conduct of
the respondent and that of sister-in-law Mrs.Diwan, I wanted to
know the real truth. I further state that consequently one day I
followed the respondent on the upstairs to follow him and to my
surprise it was discovered that Smt.Diwan and the respondent
were found in compromising position in the mid night.”
(iv) In para 24 of her affidavit giving the family chart she has tried to
explain that since both sons of ‘Jethani’ are inheriting the property left by
her father-in-law Late Sh.Nand Ram Solanki, her ‘Jethani’ namely
Smt.Deewan and her husband are doing these unsocial and illegal activities
against her to prevent her from giving birth to a male child.
(v) She reported the incident of seeing her husband and ‘Jethani’ in
compromising position to her ‘Jeth’ Ramesh who did not object to their
relationship and asked for a sexual favour from her and to live life in cross
adultery.
(vi) She was threatened not to disclose these facts to anyone in the
neighbourhood or to her family. 
(vii) She continued tolerating her husband living in adultery hoping for
good sense to prevail upon him without disclosing to her parents or relatives
to save the honour of both the families.
(viii) In 1998 when she was pregnant, she left the matrimonial home and
went to her parents’ house where she gave birth to a daughter on February
17, 1999. Despite being informed neither her husband or family came to see
the child and then she returned matrimonial home alongwith her cousin
brother. They were not welcomed rather she was insulted and humiliated
and her husband continued living in adultery.
(ix) Panchayat was called at her parental village in Dhigal (Haryana) 2-3
times and her family also visited the house of her husband for reconciliation
but their efforts failed.
(x) Her cousin brother and uncle brought her back to village Dhigal in the
year 1999. Since then her husband had never taken any initiative either for
reunion or for the custody of the minor child.
19. In her cross examination dated February 12, 2014 she stated that the
illicit relationship between her husband and his ‘Bhabhi’ was disclosed by
her to her mother after about 2½ years and her mother informed her father.
She admitted that in the complaint Ex.PW1/R1 to the SHO, PS Dwarka she
made the allegation of being harassed and taunted on account of dowry and
that no action was taken on her complaint. She has also admitted that in the
petition under Section 125 CrPC she deposed that she was staying with the
family of Sanjay Gupta at Karol Bagh during the period 2007 to 2011. She
has also admitted that her daughter is living at her parental house whereas
she is residing at Uttam Nagar at her Bua’s house (father’s sister house) and
that her father is looking after her daughter, her daughter visits her during
holidays. During her cross examination conducted on July 31, 2014 she 
admitted that in the complaint Ex.PW1/R1 written by her in Hindi she has
not made any allegation of her husband having illicit relationship with his
‘Bhabhi’.
20. PW-2 Balbir Singh – father of appellant/wife in his affidavit deposed
to the following effect on the vital points relevant for this appeal:-
(i) Just after two months of the marriage, his daughter informed him
about illicit relationship between her husband and ‘Bhabhi’. On hearing
this, he visited her matrimonial home and took up the issue but they started
abusing his daughter. He assured her daughter that things will become
normal soon.
(ii) For four years after the marriage, his daughter continued visiting her
parents’ house intermittently and during that period her husband continued
living in adultery.
(iii) He alongwith his close relatives and Panchayat of village Dhigal
(Haryana) visited the matrimonial home of his daughter to resolve the
dispute.
(iv) The matter could not be settled and his daughter was physically
turned out from the matrimonial home.
(v) Her husband did not like the birth of female child and despite being
intimated, he did not take them back till date.
(vi) In his cross examination, he has stated that her daughter had taken a
house on rent before 1998 in Uttam Nagar.
21. PW-3 Sh.Kuldeep Singh Chikara – cousin of the appellant/wife with
whom she finally left the matrimonial home in the year 1999 has stated that
after 3-4 weeks of the marriage he came to know about something wrong in
the family of the appellant/wife on account of illicit relationship of her
husband and ‘Bhabhi’ and his indifferent attitude towards his wife which 
fact was disclosed by her (appellant) to him (PW-3). Efforts of
reconciliation though made with the intervention of Panchayat 3-4 times but
with no success. Respondent/husband never came to see his daughter and
attitude of his entire family towards Panchayat was rude.
22. There are two identically worded affidavits of Kuldeep Singh Chikara
on record: one attested on August 27, 2015 and another attested on July 31,
2014 which is Ex.PW3/A. PW-3 was cross examined on January 13, 2015
wherein he stated that Panchayat meetings were held about ten times and
last Panchayat was held at PS Dwarka, however, he claimed that he did not
know if the appellant/wife had filed a complaint in the year 2006 with PS
Dwarka. He also stated that appellant/wife is residing with her Mausi at
Nawada near Uttam Nagar, Delhi and it just takes three minutes to reach that
house from his house. He denied the appellant/wife living in a rented
accommodation. He was denied having any knowledge as to where the
daughter of appellant/wife was born and who is taking care of her despite
averments to this effect having been made by him in his affidavit
Ex.PW3/A. He also did not know whether the appellant/wife had left the
matrimonial home in 1998. He was also not aware if she had resided at the
house of Sanjay Gupta at Karol Bagh for about 3-4 years.
23. On re-appreciation of the testimony of the appellant’s own witness
including herself, the following conclusions can be drawn:
(i) She left the matrimonial home in the year 1999.
(ii) After leaving the matrimonial home in the year 1999, she started
residing in Uttam Nagar, Delhi leaving her infant daughter at her parents’
place. Till date the mother and daughter are residing separately as
appellant/wife is in Delhi and her daughter is with her maternal grandfather
where she is living and staying since her birth.
(iii) PW-2 Balbir Singh – father of appellant/wife did not speak about any
dowry demand of ₹5 lacs or partially meeting the dowry demand by
arranging `2 lacs.
(iv) Different versions appearing on record as to when she informed her
parents or cousin about her husband having illicit relations with his Bhabhi’.
(a) As per PW-1, the appellant/wife informed her mother after 2½ year of
her marriage who in turn informed her father.
(b) PW-2 Sh.Balbir Singh – father of the appellant/wife has stated that his
daughter herself told him at his own house that her husband was having
illegal relations with his ‘Bhabhi’.
(c) PW-3 Kuldeep Singh Chikara – cousin of appellant/wife has stated
that Sudesh i.e. the appellant/wife told him about adulterous relations of her
husband 3-4 months after the marriage at her matrimonial home.
(v) It is appellant’s own case that soon after the marriage, for five months
she was not taken back to the matrimonial home. If it was so then above
testimony of PW-2 Balbir Singh and of PW-3 Kuldeep Singh Chikara is
liable to the rejected.
(vi) The first police complaint was made on February 27, 2006 i.e. almost
after the period of seven years of leaving the matrimonial home did not
contain any allegation against the respondent/husband of living in adultery
with his ‘Bhabhi’. It was focussed only on dowry demand and harassment.
As per the appellant/wife (PW-1) the problem between them was only on
account of her husband’s illicit relationship with his ‘Bhabhi’ thus ruling it
out to be a case of harassment on account of dowry demand or for giving
birth to a daughter.
(vii) No member of the Panchayat was examined to establish whether any
Panchayat was ever convened and if so what were the issues between the 
parties i.e. adulterous life of the respondent/husband or harassment on
account of dowry.
(viii) If the version of the appellant/wife that her ‘Jethani’ never wanted her
to give birth to a male child so that the inheretence is restricted to her two
sons, then there could not have been any occasion to taunt her for giving
birth to a daughter. Birth of a daughter should have been welcomed by her
in-laws if this was the cause to prevent her from conceiving and giving birth
to a male child.
24. We have already extracted the pleadings and re-examined the
evidence in the cases under Section 12 of the Domestic Violence Act and
under Section 125 CrPC as well in the pleadings of two HMA petitions
making averments that respondent/husband was living in adultery. We have
already extracted the salient features of the testimony of the three witnesses
examined by the appellant/wife (including herself) to prove the said
averments.
25. The expression ‘cruelty’ has not been defined in the Hindu Marriage
Act and it includes physical as well mental cruelty. However, cruelty as
envisaged under Section 13(1)(ia) of the said Act has been subject matter of
discussion before the High Courts and the Supreme Court in catena of
judgments. The concept of cruelty has received interpretation in somewhat
broad terms.
26. The accusations by one spouse against the character of other spouse
by making false, malicious unproved accusations either in the pleadings or
by way of making complaints to various authorities constitute mental
cruelty. It was so held in the decision reported as (2003) 3 SCR 607
Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate wherein the
appellant/husband made accusations against his wife assassinating her 
character and it was held as under:
‘7. The question that requires to be answered first is as to
whether the averments, accusations and character
assassination of the wife by the appellant husband in the
written statement constitutes mental cruelty for sustaining the
claim for divorce under Section 13(1)(i-a) of the Act. The
position of law in this regard has come to be well settled and
declared that leveling disgusting accusations of unchastity and
indecent familiarity with a person outside wedlock and
allegations of extra marital relationship is a grave assault on
the character, honour, reputation, status as well as the health of
the wife. Such aspersions of perfidiousness attributed to the
wife, viewed in the context of an educated Indian wife and
judged by Indian conditions and standards would amount to
worst form of insult and cruelty, sufficient by itself to
substantiate cruelty in law, warranting the claim of the wife
being allowed. That such allegations made in the written
statement or suggested in the course of examination and by way
of cross- examination satisfy the requirement of law has also
come to be firmly laid down by this Court. On going through
the relevant portions of such allegations, we find that no
exception could be taken to the findings recorded by the Family
Court as well as the High Court. We find that they are of such
quality, magnitude and consequence as to cause mental pain,
agony and suffering amounting to the reformulated concept of
cruelty in matrimonial law causing profound and lasting
disruption and driving the wife to feel deeply hurt and
reasonably apprehend that it would be dangerous for her to live
with a husband who was taunting her like that and rendered the
maintenance of matrimonial home impossible.’
27. In the facts of instant appeals there is a role reversal to the extent that
accusations are made against the respondent/husband which had the
disastrous effect on him to the extent that he had to leave his village and
settled in Rajasthan. Perhaps he has taken this step to save the matrimonial
life of his own brother as he was accused of having living in adultery with
his wife. As per the settled legal position casting aspersion of such nature 
had the deleterious effect on the mind of her husband which can be termed
as one of the worst form of mental cruelty.
28. So far as dismissal of the petition and seeking restitution of conjugal
rights are concerned, it was the appellant who had left the matrimonial home
in the year 1998 for her delivery at her parent’s home and then in the year
1999 in the company of her family members. No complaint of any physical
violence, harassment of dowry demand or any other reason compelling her
to leave the matrimonial home was made by her soon after leaving the
matrimonial home. She was residing independently in Delhi leaving her
daughter at her parental home.
29. The prayer of the appellant/wife for restitution of conjugal rights has
rightly been declined by learned Judge Family Court in the given facts and
circumstances. In the decision reported as (1994) 1 SCC 337 V.Bhagat Vs.
D.Bhagat it was held as under:-
“A mental cruelty under Section 13(1)(ia) can 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. It is held that mental cruelty must be of
such a nature that the parties cannot reasonably be expected to
live together. It is also held that 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. In my
view the said judgment clearly applies to the facts of this case.”
30. Even otherwise filing of a petition seeking restitution of conjugal
rights in the year 2012 i.e. after 13 years of leaving the matrimonial home
does not seem to be a bonafide act on her part for the re-union. That too with
the background already litigating with the respondent by filing a petition
under Protection of Women from Domestic Violence, 2005 as well for
maintenance much prior to that. In the given facts, learned Judge, Family
Court has rightly dismissed her petition seeking restitution of conjugal 
31. Finding no illegality or perversity in the impugned order, both the
appeals are hereby dismissed but without any order as to costs.
32. TCR be sent back alongwith copy of this order.
 PRATIBHA RANI
 (JUDGE)

PRADEEP NANDRAJOG
 (JUDGE)
AUGUST 31, 2016

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