as the above extract show that despite giving several opportunities to make a
representation, the appellant was only interested in prolonging the litigation
and did not take the opportunity afforded by this court seriously. It was
observed in the judgment of this court, dated 06.07.2015 as follows:
“ 10. The order dated 17.03.2015, the relevant portion whereof
has been extracted hereon above, is clear as daylight. There
can be no ambiguity or confusion about the terms on which the
petitioner was granted one last opportunity to lead his evidence
and cross examination. Admittedly, the petitioner has not
availed the said opportunity. He did not pay in advance the
aggregate costs of Rs.50,000/- before offering himself for crossexamination.
The submission that the petitioner was under a
bonafide belief that the earlier cheque of Rs.20,000/- had been
encashed by the respondent/wife is untrue to the record. As
noticed above, the cheque of Rs.20,000/- given to the
respondent on 30.04.2013 had not been encashed on account of
the same containing unwarranted writings at the back, and by
subsequent order of 10.09.2013, the petitioner was instructed to
bring another cheque, which he failed to do. While passing the
order dated 17.03.2015, this Court was conscious of the fact
that the earlier costs of Rs.35,000/- was outstanding, and this
was so recorded in the order dated 17.03.2015. The petitioner
was also conscious of this position and, therefore, did not come
back to the court to submit that the costs are not Rs.35,000/-
but only Rs. 15,000/- - on the assumption that the earlier
cheque of Rs.20,000/- given to the respondent had been
encashed.
11. Despite this being the position, even on the date fixed for
recording his cross examination, the respondent only tendered
two cheques of Rs. 15,000/-. If he were serious about
compliance of the order he would have either brought cash or
pay order for the entire amount of Rs.50,000/-.
12. The conduct of the respondent has to be viewed in the light
of the earlier proceedings. It is seen from the earlier
proceedings that on repeated occasions, the respondent did not
appear and offer himself for cross examination, which is why
his right to lead evidence and cross examination was closed.
Thus, this Court, while indulging in the petitioner on
17.03.2015 observed that on merits the petitioner was not
deserving of relief, i.e. of interference with the orders dated
13.05.2014, 06.10.2014 and 21.01.2015. It is clear that the
petitioner is only seeking to drag the proceedings and to
prevent the conclusion of the proceedings before the Family
Court. I am, therefore, not inclined to grant any further
indulgence and I find no error of jurisdiction in the impugned
order.”
17. In these circumstances it is not for the appellant to urge that he was
not given an opportunity to represent himself adequately. As is apparent
from the record, the appellant defaulted time and again with payment ofamount, which was the condition precedent for his appearance. This Court
by its order dated 17.03.2015 felt it proper in the interest of justice to allow
the appellant a chance of cross-examination despite there being no merit in
his arguments. The appellant chose to fritter away the opportunity given to
him through his callous attitude and is estopped through his conduct from
raising such ground in appeal.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 03.08.2016
MAT. APP. (FC) 150/2015
GOPAL KRISHAN DUA
V
RAJNI DUA AND ANOTHER
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
Citation:AIR 2016 (NOC) 725 DEL
1. This appeal under Section 19 of the Family Courts Act, 1984 is
directed against the judgment dated 22.08.2015 passed by the Principal
Judge, Family Courts, Tis Hazari. The learned Judge allowed the wife’s
petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955
(hereafter “the Act”) and dismissed the husband’s counter claim for
restitution of conjugal rights under Section 9 of the Act.
2. The facts relevant to decide the case are that the wife (“respondent”)
married the appellant on 09.08.1989 in New Delhi; two sons were born from
the wedlock on 26.10.1992 and 17.06.1996. The wife, in her petition before
the learned Judge alleged various acts of mental as well as physical cruelty to
which she was subjected by the appellant husband. In her petition she alleged
that the appellant used to constantly taunt her for getting insufficient dowry
and would, at times, lock her up in a room. It is also alleged that the
appellant is highly aggressive and accustomed to inflicting cruelty because
of which his previous marriage ended in divorce within just a few months.
The wife alleged that the appellant humiliated and abused her on a daily
basis, which impacted the children as well. It was alleged by the respondent
wife that once in July 2004, the appellant beat her and banged her head on
the wall leading to her sustaining multiple injuries; she did not, however,
disclose it for the sake of her children. She claims that this sort of physical
violence as well as cruelty and humiliation was regular feature that she
suffered for several years for the welfare of her children.
3. The wife had alleged that matters took a turn for the worse when on
01.05.2006 at about 4.00 pm, the Appellant abused her and began beating his
son. A PCR had to be called to diffuse the situation. The same night, upon
the wife returning home with her son, the appellant refused to open the door
and let them in; he threatened to kill her and the children. Yet again PCR
was called so that they could enter the house. On 01.05.2006 and 03.05.2006
the wife was constrained to file criminal complaints with the SHO, C.R. Park
and demanded police security. It is under these circumstances that the
respondent sought dissolution of marriage and instituted the petition on
06.03.2007.
4. The appellant husband in his defence, denied all allegations of cruelty
and accused the respondent wife of misconduct. He filed a counter claim,
under Section 9 of the Act, for restitution of conjugal rights, and impleaded
Himanshu Deshpal (“Himanshu”) who is respondent No. 2 in the present
appeal. He alleged that the respondent wife complained for the first time
only in 2006, after more than 18 years of marriage as she was in an extramarital
affair with Himanshu Deshpal, which is continuing ever since. He
alleged that the respondent/wife and Himanshu Deshpal had made several
outstation trips including one to Agra along with the children. He alleged
that the wife was a serial litigant who had filed a complaint before the CAW
Cell as well as filed a complaint under the Domestic Violence Act under
section 498A/406 of the Indian Penal Code which was ultimately dismissed
by the learned Metropolitan Magistrate, thus suggesting the appellant’s
innocence.
5. Based on the claims of the respondent and counter claim of the
appellant, the learned Judge framed the following issues for determination on
12.05.2008:
“1. Whether the respondent Sh. Gopal Krishan Dua has,
after solemnization of marriage treated the petitioner with
cruelty? OPP
2. Whether the petitioner Rajni Dua, wife has withdrawn
from the society of Gopal Krishan Dua without reasonable
excuse? OPR1
3. Whether the petitioner Rajni Dua had illicit relations
with Himashu Deshpal @ Hunny and thus after the
solemnization marriage, had voluntary sexual intercourse with
any person other than her spouse? OPR1
4. Whether the petitioner is entitled to relief claimed? OPP
5. Whether the respondent is entitled to relief claimed?
OPR1
The following additional issue was also framed on 13.01.2011:
1. Whether the petitioner by her acts and conduct has
condoned the acts of cruelty? OPR
Relief.”
6. In support of her case the respondent examined herself as PW 1 and
tendered documentary evidence, which included photographs of her visit to
Agra with several friends and her children. She also placed on record
criminal complaints filed by her dated 01.05.2006 and 03.05.2006 before
SHO, C.R. Park, complaint dated 01.10.2007 and 03.10.2007 filed before
SHO, PS Kasana, Greater Noida; medical report relating to the treatment
undergone by her for bruises suffered by her by the alleged assault by her
husband; complaint dated 05.12.2007 by their son before SHO, C.R. Park;
complaint of 25.12.2007 before DCP, South District; and FIR dated
01.01.2008. As against this, the appellant placed on record a photograph
dated 28.01.2007 of the respondent with Himanshu Deshpal taken in Agra;
and statement of account from 01.11.1999 to 08.09.2007. He brought on a
record a copy of a diary allegedly written by Himanshu. The appellant was
cross-examined on several dates and finally on 24.10.2013. After that day,
citing one reason or another he avoided further cross-examination. Due to
the appellant’s conduct, the Court closed his cross-examination, against
which he unavailingly approached this Court at an earlier stage in an
interlocutory appeal.
7. The Family Court- in the impugned judgment went on to make issue
wise determination of the case. It was argued by the respondent that from the
very inception of her marriage to the appellant he had subjected her to illegal
demand of dowry and kept her locked in a room. She also alleged that her
father gave ` 3 lakhs to the respondent to stop harassing her. As per her own
admission, the respondent belonged to a middle class family and when
asked, she could not pinpoint the source of `3 lakhs that her father had
given. The Court was of the opinion that the wife’s evasive replies during
her testimony as well as the fact that she made several improvements to her
earlier statements failed to show any demand for dowry by the appellant;
similarly it refused to believe, as incredible, her allegation that the appellant
had locked her up in a room and inflicted physical cruelty. The learned Judge
observed that the appellant and his family owned and managed a joint
business; however, due to certain disputes a settlement was arrived at
between members of his family by which the appellant was given several
properties as well as factories in Delhi and Noida. Two factories namely M/s
Rajni Industries and M/s Gopal Industries were handed over to the
respondent wife and appellant respectively; in fact, she managed several of
the family businesses. Despite this, the wife made allegations of illegal
dowry demand against the appellant, which she was unable to substantiate
her assertions with evidence. Thereafter, the respondent in her petition
before the Family Court had alleged that the appellant had extracted ` 8
lakhs from her under coercion which she later learnt was deposited in the
Court of the Ld. Civil Judge, Ludhiana. However, she also admitted that she
did not file any complaint in this regard. As regards this, the Court while
dismissing the contention, was of the opinion that “her contemporaneous
conduct in voluntarily furnishing the quantified amount to the respondent to
be utilized as FDR without any complaint to any authority leads to the
inference that she did such act voluntarily and not under any force or
coercion.” Based on the above reasoning the learned Judge was of the
opinion that the parties shared cordial business relations and that the
respondent had failed to prove dowry allegations.
8. The learned Judge thereafter analysed if mental cruelty by the
appellant was inflicted against the respondent. Answering in the affirmative,
it was held that a strong element of mental cruelty existed; the wife, because
of the allegations of adultery made against her by the appellant suffered
mental agony and stress. The Court while holding that allegations of
adulterous relationship by one spouse against another amounts to mental
cruelty, relied upon the following cases- Hemwanti Tripathi vs. Harish
Narai Tripathi, AIR 2012 Delhi 1; D.N. Sharma vs. Usha Sharma AIR 2004
Delhi 198; Jai Dayal vs. Shakuntala Devi AIR 2004 Delhi 39; Ramesh
Kumar Sharma vs. Aakash Sharma 2008 DMC 315 and Nirmala Devi vs.
Dev Prakash (1989) DMC 23.
9. In his counter claim before the Court, the appellant alleged that the
respondent was having an extra-marital affair, but sought restitution of
conjugal rights on the condition that the respondent discontinue her
adulterous relationship with Himanshu Deshpal. During her crossexamination
the wife denied the allegation of having an adulterous
relationship. The appellant in order to prove the adulterous relationship of
the respondent with Himanshu relied upon a photograph of the both of them
taken in Agra, which he placed on record. Further, he placed a copy of the
diary supposedly maintained by Himanshu, though the appellant failed to
produce it in original. He was, however, unable to prove the authenticity of
the copied record and was unaware of Himanshu’s handwriting. The
appellant went on to assert that the respondent was spending extravagantly
on Himanshu and apprehended that the wife and Himanshu may have
secretly married. Though the appellant had not actually seen the respondent
and Himanshu together in Agra, his basis for this allegation was the
statement allegedly made by one Tulsi Ram who was the respondent’s driver
and of her mother in the CAW Cell; he denied seeing the wife sharing any
kind of affinity with Himanshu in public. The appellant urged that several
letters were exchanged between the respondent and Himanshu; though he
was unable to corroborate the same with evidence. It is the case of the
appellant that the respondent filed the complaint under the Domestic
Violence Act as well as the divorce petition after she found out that the
appellant knew of her extra-marital affair.
10. Based on the statements made by the appellant in his pleadings as well
as during cross-examination, the learned Judge was of the opinion that the
entire allegation of the extra-marital affair was only a figment of his
imagination without any substantial proof. In the opinion of the trial court
simply visiting a place in the company of her children and Himanshu could
not conclusively prove allegations of adultery. The appellant led no other
credible evidence in this regard. The Court held that the actions of the
appellant fell squarely within the definition of those, which inflict mental
cruelty. Notice was also brought to a publication made at the appellant’s
behest in a local newspaper maligning the respondent after the dismissal of
the case under the Domestic Violence Act. The Court opined that the
intention of the appellant to defame his wife was not only restricted to close
family circles but to everyone generally. In the absence of cogent proof,
levelling such allegation through publication in a newspaper was enough to
constitute mental cruelty. The respondent did not leave the society of the
appellant without any reason and was compelled to do so because of the
distasteful remarks made against her. Similarly she did not condone the acts
of cruelty by the appellant but suffered them for the sake of her children; it
could not be said that she forgave the appellant’s acts impliedly because she
resided with him under the same roof and carried on with their joint
business, which is in reality run by several officers of the company.
However, she was impelled to take legal recourse and sought dissolution of
marriage because of the derogatory allegations made by him.
11. In view of the above discussion the Court dissolved the marriage of
the appellant with the respondent on grounds of mental cruelty and rejected
the counter claim of the appellant, especially, because he sought restitution
of his conjugal rights on a conditional basis. The Court held:
“73. In view of my foregoing discussion, the respondent is not
entitled to the relief claimed as he has given rider for rejoining
of his society only if the petitioner snaps all her relations with
respondent no. 2 Himanshu. Levelling of allegations of
adulterous relationship per se amounts to mental cruelty.
Therefore, counter claim of the respondent no.1 stands
dismissed.
RELIEF
74. In view of my decision on all the issues above, the petition is
allowed in favour of the petitioner and against the respondent
and counter claim of the respondent is dismissed as a result the
marriage of the petitioner Rajni Dua with the respondent Gopal
Krishan Dua is dissolved w.e.f today 22-08-2015 u/s 13(1)(ia),
HMA, 1955 on the ground of cruelty. Decree sheet be drawn
accordingly. File be consigned to record room.”
12. In his appeal, the appellant has contended- and his counsel urges that
owing to his financial status and businesses, he never sought any dowry from
the respondent; on the contrary, he ensured to the best of his ability that the
respondent and their children led a comfortable life. It thus came as a
shocker to the appellant that after having an incident free marriage for 18
years, the respondent would initiate divorce proceedings against the
appellant. The appellant, however, maintains that it was hardly a coincidence
that the respondent filed the divorce petition at the same time the appellant
found out about her extra-marital affair with Himanshu who has been
impleaded as second respondent in the present proceedings. The appellant
avers that the respondent threw all caution to the wind while getting intimate
with Himanshu in public and many family members as well as friends of the
appellant have seen the respondent with the latter. In the appeal, the
appellant maintains that the respondent still has an extra-marital affair and
sought dissolution of marriage so that she could remarry.
13. Counsel for the appellant also argued that the Family Court fell into
error in holding that the wife’s unfounded allegations of dowry harassment,
and other such wild assertions completely undermined her credibility. Her
evidence had to be read as a whole; the Court, he submitted, was unduly
swayed by the Police complaints lodged by the wife, over which the
appellant husband had no control. The truth of those allegations- in the
police complaint- had never been established in any credible manner; there
was nothing to suggest that such complaints had been followed up with
investigation or any indictment. Therefore, the learned Family Judge should
not have based his findings on the appellant’s supposed cruelty, on such
scant materials.
14. It is further contended by the appellant that after conclusion of
evidence the matter was fixed for oral arguments but due to a personal
difficulty of the appellant’s lawyer, he could not appear before the Family
Court. The appellant sought and was refused adjournment and on the next
date impugned judgment and decree was passed. In the context of these
allegations it is relevant to produce the following extract from the impugned
judgment:
“32. ….. He was cross examined on 19.04.2011, 16.05.2011,
06.11.2012, 07.11.2012, 22.11.2012, 24.10.2013. Thereafter
on one pretext or the other the respondent shyed away from
subjecting himself to his cross examination and his cross
examination was closed by order of the court and his efforts to
reopen his cross examination by obtaining a favourable order
from Hon’ble High Court could not succeed on account of his
failure to abide by the directions of Hon’ble High Court in this
regard in letter and spirit.”
It was submitted that the appellant was not given sufficient opportunity to
establish his case, as his evidence was prematurely closed.
15. Counsel for the wife urged that the husband’s inability to prove the
wild and reckless allegations constituted cruelty. Besides, submitted the
learned counsel, the last instances of cruelty- physical and mental, were
substantiated by convincing evidence. Therefore, he urged the court not to
interfere with the findings and judgment of the Family Court.
Analysis and Findings
16. A combined reading of the order of this Court dated 06.07.2015 as well
as the above extract show that despite giving several opportunities to make a
representation, the appellant was only interested in prolonging the litigation
and did not take the opportunity afforded by this court seriously. It was
observed in the judgment of this court, dated 06.07.2015 as follows:
“ 10. The order dated 17.03.2015, the relevant portion whereof
has been extracted hereon above, is clear as daylight. There
can be no ambiguity or confusion about the terms on which the
petitioner was granted one last opportunity to lead his evidence
and cross examination. Admittedly, the petitioner has not
availed the said opportunity. He did not pay in advance the
aggregate costs of Rs.50,000/- before offering himself for crossexamination.
The submission that the petitioner was under a
bonafide belief that the earlier cheque of Rs.20,000/- had been
encashed by the respondent/wife is untrue to the record. As
noticed above, the cheque of Rs.20,000/- given to the
respondent on 30.04.2013 had not been encashed on account of
the same containing unwarranted writings at the back, and by
subsequent order of 10.09.2013, the petitioner was instructed to
bring another cheque, which he failed to do. While passing the
order dated 17.03.2015, this Court was conscious of the fact
that the earlier costs of Rs.35,000/- was outstanding, and this
was so recorded in the order dated 17.03.2015. The petitioner
was also conscious of this position and, therefore, did not come
back to the court to submit that the costs are not Rs.35,000/-
but only Rs. 15,000/- - on the assumption that the earlier
cheque of Rs.20,000/- given to the respondent had been
encashed.
11. Despite this being the position, even on the date fixed for
recording his cross examination, the respondent only tendered
two cheques of Rs. 15,000/-. If he were serious about
compliance of the order he would have either brought cash or
pay order for the entire amount of Rs.50,000/-.
12. The conduct of the respondent has to be viewed in the light
of the earlier proceedings. It is seen from the earlier
proceedings that on repeated occasions, the respondent did not
appear and offer himself for cross examination, which is why
his right to lead evidence and cross examination was closed.
Thus, this Court, while indulging in the petitioner on
17.03.2015 observed that on merits the petitioner was not
deserving of relief, i.e. of interference with the orders dated
13.05.2014, 06.10.2014 and 21.01.2015. It is clear that the
petitioner is only seeking to drag the proceedings and to
prevent the conclusion of the proceedings before the Family
Court. I am, therefore, not inclined to grant any further
indulgence and I find no error of jurisdiction in the impugned
order.”
17. In these circumstances it is not for the appellant to urge that he was
not given an opportunity to represent himself adequately. As is apparent
from the record, the appellant defaulted time and again with payment of
amount, which was the condition precedent for his appearance. This Court
by its order dated 17.03.2015 felt it proper in the interest of justice to allow
the appellant a chance of cross-examination despite there being no merit in
his arguments. The appellant chose to fritter away the opportunity given to
him through his callous attitude and is estopped through his conduct from
raising such ground in appeal.
18. On the merits, the trial Court was of the opinion that the appellant had
caused mental cruelty to the respondent wife by making utterly unfounded
allegations of adultery against her. In his appeal, the husband claims that his
counter claim for restitution of conjugal rights should be allowed. The
learned Judge rejected it on the ground that the firstly the appellant’s
remarks against his wife inflicted cruelty on her and secondly restitution
could not come with riders (the sort the appellant placed) given the
circumstances of the case; he claimed restitution subject to the respondent
giving up her adulterous relationship. The Court also referred to a newspaper
article, which was published at the direction of the appellant which reported
the dismissed case under the Domestic Violence Act and referred to the
respondent as adulterous. The article has been admitted by the appellant and
goes to show that the appellant was on a mission to humiliate the respondent
in public which clearly amounted to mental cruelty.
19. This court now proposes to proceed to determine whether the act of
alleging adulterous relationship in the circumstances of this case would
warrant dissolution of marriage under Section 13(1)(ia) of the Act i.e.
cruelty. While Section 13(1)(ia) contemplates both physical and mental
cruelty, the current appeal pertains to mental cruelty. Mental cruelty cannot
be defined through a straitjacket formula and there is no exhaustive list as to
what constitutes it. As a starting point, to establish cruelty one may analyse
the intention, knowledge or character of the respondent, the nature of the
spouse alleging cruelty including his/her mental and physical weaknesses; in
essence there can be no general rules and one must proceed on a case-bycase
basis to determine what constitutes mental cruelty. Mental cruelty can at
times cause more grievous harm than physical cruelty and create in the mind
of the suffering spouse a reasonable apprehension that it will be unsafe to
live with the other spouse. In cases of mental cruelty the facts need to be
delved into; the Court is required to deconstruct the mental process as well as
extrapolate the effects of such incidents through evidence brought on record.
When the whole conduct of the spouse shows instances of ill-treatment
including allegations which cast aspersions on the fidelity of the other spouse
which in turn could demoralize the affected spouse causing mental agony
and stress then under such circumstances a strong case of mental cruelty
exists. The Supreme Court ruled, in Vishwanath Agrawal vs. Sarla Agrawal,
AIR 2012 SC 2586 that uncalled for allegations (of extra-marital affairs) are
bound to create mental agony and anguish. In that case, the wife had made
baseless allegations unsupported by evidence, of her husband having an
extra-marital affair. She also published an article in a newspaper making
allegations about her husband’s womanizing ways. The husband filed for
divorce on grounds of cruelty which was rejected by the trial court as well as
the High Court. However, in appeal, the Supreme Court allowed dissolution
of marriage. It was observed:
“We really fail to fathom how from this incident and some
cryptic evidence on record, it can be concluded that the
respondent-wife had established that the husband had an extra
marital relationship with Neeta Gujarathi. That apart, in the
application for grant of interim maintenance, she had pleaded
that the husband was a womaniser and drunkard. This pleading
was wholly unwarranted and, in fact, amounts to a deliberate
assault on the character. Thus, we have no scintilla of doubt
that the uncalled for allegations are bound to create mental
agony and anguish in the mind of the husband.”
20. The appellant in his written statement before the Family Court denied
all allegations levelled against him by the respondent and went on to allege
that the latter was in an adulterous relationship, without any concrete
evidence. All he produced was a photograph of the respondent with
Himanshu in Agra, which does not conclusively determine the existence of
an extra-marital relationship as alleged by him. Further, the publication of an
article in a newspaper referring to the respondent as adulterous, a fact
admitted by the appellant during trial suggests a mental element in defaming
the respondent to the world at large. It is also admitted that he inflicted
physical harm upon his son, of such kind, which led to the respondent
seeking police assistance. Under the circumstances, it is fathomable that the
respondent was not inclined to return to her matrimonial home and sought
dissolution of her marriage with the appellant. The appellant could not bring
before this Court cogent evidence to prove his wife’s affair though he still
continues to allege it. In the circumstances, the appellant’s version of events
is liable to be dismissed as being nothing but exaggerated tales.
21. Marriages- more than any other relationships- are founded and
sustained on trust and mutual understanding. If suspicion enters this
relationship, it is in the interests of both spouses to clear the air, or else
doubts would simmer, take ominous shape in the form of phantasmagoria of
enormous magnitude. In this case, the husband appears to have harboured
such suspicions, and, all too willingly allowed them to fester and assume
large proportions. Distressingly, this led him to level wild and unfounded
allegations, which he persisted with, even in the present appeal. Such
feelings are utterly unconducive of any meaningful conjugal relationships.
Cruelty, otherwise, is a phrase of many hues. Courts are advisedly
circumspect in stereotyping what is cruelty or what can be described as
cruelty because acceptable behaviour in one mileu can be entirely anathema
in another. One recollects the wise instruction of A.P. Sen, J in Shobha Rani
vs. Madhukar Reddi, AIR 1988 SC 121:
"There has been a marked change in the life around us. In
matrimonial duties and responsibilities in particular, there is a
sea change. They are of varying degrees from house to house or
person to person. Therefore, when a spouse makes complaint
about the treatment of cruelty by the partner in life or relations,
the Court should not search for standard in life. A set of facts
stigmatized as cruelty in one case may not be so in another
case. The cruelty alleged may largely depend upon the type of
life the parties are accustomed to or their economic and social
conditions. It may also depend upon their culture and human
values to which they attach importance. The Judges and
lawyers, therefore, should not import their own notions of life.
Judges may not go in parallel with them. There may be a
generation gap between the Judges and the parties. It would be
better if the Judges keep aside their customs and manners. It
would be also better if Judges less depend upon precedents."
Cruelty therefore, is contextual- to the times, to the place, to the station in
life of the spouses and attendant circumstances. In a bye-gone era, perhaps it
might have been acceptable for a husband to level unfounded allegations of
adulterous relationships of the wife; not any longer. It is at once traumatic
and destructive of the very foundation of matrimony.
22. For the above reasons, this Court is of the opinion that the Family
Court’s order granting divorce to the respondent and disallowing the
appellant’s counter claim is justified and need not be interfered with. The
appeal, therefore, is dismissed. There is no order, in the circumstances, as to
costs.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
AUGUST 03, 2016
Pronounced on: 03.08.2016
MAT. APP. (FC) 150/2015
GOPAL KRISHAN DUA
V
RAJNI DUA AND ANOTHER
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
Citation:AIR 2016 (NOC) 725 DEL
1. This appeal under Section 19 of the Family Courts Act, 1984 is
directed against the judgment dated 22.08.2015 passed by the Principal
Judge, Family Courts, Tis Hazari. The learned Judge allowed the wife’s
petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955
(hereafter “the Act”) and dismissed the husband’s counter claim for
restitution of conjugal rights under Section 9 of the Act.
2. The facts relevant to decide the case are that the wife (“respondent”)
married the appellant on 09.08.1989 in New Delhi; two sons were born from
the wedlock on 26.10.1992 and 17.06.1996. The wife, in her petition before
the learned Judge alleged various acts of mental as well as physical cruelty to
which she was subjected by the appellant husband. In her petition she alleged
that the appellant used to constantly taunt her for getting insufficient dowry
and would, at times, lock her up in a room. It is also alleged that the
appellant is highly aggressive and accustomed to inflicting cruelty because
of which his previous marriage ended in divorce within just a few months.
The wife alleged that the appellant humiliated and abused her on a daily
basis, which impacted the children as well. It was alleged by the respondent
wife that once in July 2004, the appellant beat her and banged her head on
the wall leading to her sustaining multiple injuries; she did not, however,
disclose it for the sake of her children. She claims that this sort of physical
violence as well as cruelty and humiliation was regular feature that she
suffered for several years for the welfare of her children.
3. The wife had alleged that matters took a turn for the worse when on
01.05.2006 at about 4.00 pm, the Appellant abused her and began beating his
son. A PCR had to be called to diffuse the situation. The same night, upon
the wife returning home with her son, the appellant refused to open the door
and let them in; he threatened to kill her and the children. Yet again PCR
was called so that they could enter the house. On 01.05.2006 and 03.05.2006
the wife was constrained to file criminal complaints with the SHO, C.R. Park
and demanded police security. It is under these circumstances that the
respondent sought dissolution of marriage and instituted the petition on
06.03.2007.
4. The appellant husband in his defence, denied all allegations of cruelty
and accused the respondent wife of misconduct. He filed a counter claim,
under Section 9 of the Act, for restitution of conjugal rights, and impleaded
Himanshu Deshpal (“Himanshu”) who is respondent No. 2 in the present
appeal. He alleged that the respondent wife complained for the first time
only in 2006, after more than 18 years of marriage as she was in an extramarital
affair with Himanshu Deshpal, which is continuing ever since. He
alleged that the respondent/wife and Himanshu Deshpal had made several
outstation trips including one to Agra along with the children. He alleged
that the wife was a serial litigant who had filed a complaint before the CAW
Cell as well as filed a complaint under the Domestic Violence Act under
section 498A/406 of the Indian Penal Code which was ultimately dismissed
by the learned Metropolitan Magistrate, thus suggesting the appellant’s
innocence.
5. Based on the claims of the respondent and counter claim of the
appellant, the learned Judge framed the following issues for determination on
12.05.2008:
“1. Whether the respondent Sh. Gopal Krishan Dua has,
after solemnization of marriage treated the petitioner with
cruelty? OPP
2. Whether the petitioner Rajni Dua, wife has withdrawn
from the society of Gopal Krishan Dua without reasonable
excuse? OPR1
3. Whether the petitioner Rajni Dua had illicit relations
with Himashu Deshpal @ Hunny and thus after the
solemnization marriage, had voluntary sexual intercourse with
any person other than her spouse? OPR1
4. Whether the petitioner is entitled to relief claimed? OPP
5. Whether the respondent is entitled to relief claimed?
OPR1
The following additional issue was also framed on 13.01.2011:
1. Whether the petitioner by her acts and conduct has
condoned the acts of cruelty? OPR
Relief.”
6. In support of her case the respondent examined herself as PW 1 and
tendered documentary evidence, which included photographs of her visit to
Agra with several friends and her children. She also placed on record
criminal complaints filed by her dated 01.05.2006 and 03.05.2006 before
SHO, C.R. Park, complaint dated 01.10.2007 and 03.10.2007 filed before
SHO, PS Kasana, Greater Noida; medical report relating to the treatment
undergone by her for bruises suffered by her by the alleged assault by her
husband; complaint dated 05.12.2007 by their son before SHO, C.R. Park;
complaint of 25.12.2007 before DCP, South District; and FIR dated
01.01.2008. As against this, the appellant placed on record a photograph
dated 28.01.2007 of the respondent with Himanshu Deshpal taken in Agra;
and statement of account from 01.11.1999 to 08.09.2007. He brought on a
record a copy of a diary allegedly written by Himanshu. The appellant was
cross-examined on several dates and finally on 24.10.2013. After that day,
citing one reason or another he avoided further cross-examination. Due to
the appellant’s conduct, the Court closed his cross-examination, against
which he unavailingly approached this Court at an earlier stage in an
interlocutory appeal.
7. The Family Court- in the impugned judgment went on to make issue
wise determination of the case. It was argued by the respondent that from the
very inception of her marriage to the appellant he had subjected her to illegal
demand of dowry and kept her locked in a room. She also alleged that her
father gave ` 3 lakhs to the respondent to stop harassing her. As per her own
admission, the respondent belonged to a middle class family and when
asked, she could not pinpoint the source of `3 lakhs that her father had
given. The Court was of the opinion that the wife’s evasive replies during
her testimony as well as the fact that she made several improvements to her
earlier statements failed to show any demand for dowry by the appellant;
similarly it refused to believe, as incredible, her allegation that the appellant
had locked her up in a room and inflicted physical cruelty. The learned Judge
observed that the appellant and his family owned and managed a joint
business; however, due to certain disputes a settlement was arrived at
between members of his family by which the appellant was given several
properties as well as factories in Delhi and Noida. Two factories namely M/s
Rajni Industries and M/s Gopal Industries were handed over to the
respondent wife and appellant respectively; in fact, she managed several of
the family businesses. Despite this, the wife made allegations of illegal
dowry demand against the appellant, which she was unable to substantiate
her assertions with evidence. Thereafter, the respondent in her petition
before the Family Court had alleged that the appellant had extracted ` 8
lakhs from her under coercion which she later learnt was deposited in the
Court of the Ld. Civil Judge, Ludhiana. However, she also admitted that she
did not file any complaint in this regard. As regards this, the Court while
dismissing the contention, was of the opinion that “her contemporaneous
conduct in voluntarily furnishing the quantified amount to the respondent to
be utilized as FDR without any complaint to any authority leads to the
inference that she did such act voluntarily and not under any force or
coercion.” Based on the above reasoning the learned Judge was of the
opinion that the parties shared cordial business relations and that the
respondent had failed to prove dowry allegations.
8. The learned Judge thereafter analysed if mental cruelty by the
appellant was inflicted against the respondent. Answering in the affirmative,
it was held that a strong element of mental cruelty existed; the wife, because
of the allegations of adultery made against her by the appellant suffered
mental agony and stress. The Court while holding that allegations of
adulterous relationship by one spouse against another amounts to mental
cruelty, relied upon the following cases- Hemwanti Tripathi vs. Harish
Narai Tripathi, AIR 2012 Delhi 1; D.N. Sharma vs. Usha Sharma AIR 2004
Delhi 198; Jai Dayal vs. Shakuntala Devi AIR 2004 Delhi 39; Ramesh
Kumar Sharma vs. Aakash Sharma 2008 DMC 315 and Nirmala Devi vs.
Dev Prakash (1989) DMC 23.
9. In his counter claim before the Court, the appellant alleged that the
respondent was having an extra-marital affair, but sought restitution of
conjugal rights on the condition that the respondent discontinue her
adulterous relationship with Himanshu Deshpal. During her crossexamination
the wife denied the allegation of having an adulterous
relationship. The appellant in order to prove the adulterous relationship of
the respondent with Himanshu relied upon a photograph of the both of them
taken in Agra, which he placed on record. Further, he placed a copy of the
diary supposedly maintained by Himanshu, though the appellant failed to
produce it in original. He was, however, unable to prove the authenticity of
the copied record and was unaware of Himanshu’s handwriting. The
appellant went on to assert that the respondent was spending extravagantly
on Himanshu and apprehended that the wife and Himanshu may have
secretly married. Though the appellant had not actually seen the respondent
and Himanshu together in Agra, his basis for this allegation was the
statement allegedly made by one Tulsi Ram who was the respondent’s driver
and of her mother in the CAW Cell; he denied seeing the wife sharing any
kind of affinity with Himanshu in public. The appellant urged that several
letters were exchanged between the respondent and Himanshu; though he
was unable to corroborate the same with evidence. It is the case of the
appellant that the respondent filed the complaint under the Domestic
Violence Act as well as the divorce petition after she found out that the
appellant knew of her extra-marital affair.
10. Based on the statements made by the appellant in his pleadings as well
as during cross-examination, the learned Judge was of the opinion that the
entire allegation of the extra-marital affair was only a figment of his
imagination without any substantial proof. In the opinion of the trial court
simply visiting a place in the company of her children and Himanshu could
not conclusively prove allegations of adultery. The appellant led no other
credible evidence in this regard. The Court held that the actions of the
appellant fell squarely within the definition of those, which inflict mental
cruelty. Notice was also brought to a publication made at the appellant’s
behest in a local newspaper maligning the respondent after the dismissal of
the case under the Domestic Violence Act. The Court opined that the
intention of the appellant to defame his wife was not only restricted to close
family circles but to everyone generally. In the absence of cogent proof,
levelling such allegation through publication in a newspaper was enough to
constitute mental cruelty. The respondent did not leave the society of the
appellant without any reason and was compelled to do so because of the
distasteful remarks made against her. Similarly she did not condone the acts
of cruelty by the appellant but suffered them for the sake of her children; it
could not be said that she forgave the appellant’s acts impliedly because she
resided with him under the same roof and carried on with their joint
business, which is in reality run by several officers of the company.
However, she was impelled to take legal recourse and sought dissolution of
marriage because of the derogatory allegations made by him.
11. In view of the above discussion the Court dissolved the marriage of
the appellant with the respondent on grounds of mental cruelty and rejected
the counter claim of the appellant, especially, because he sought restitution
of his conjugal rights on a conditional basis. The Court held:
“73. In view of my foregoing discussion, the respondent is not
entitled to the relief claimed as he has given rider for rejoining
of his society only if the petitioner snaps all her relations with
respondent no. 2 Himanshu. Levelling of allegations of
adulterous relationship per se amounts to mental cruelty.
Therefore, counter claim of the respondent no.1 stands
dismissed.
RELIEF
74. In view of my decision on all the issues above, the petition is
allowed in favour of the petitioner and against the respondent
and counter claim of the respondent is dismissed as a result the
marriage of the petitioner Rajni Dua with the respondent Gopal
Krishan Dua is dissolved w.e.f today 22-08-2015 u/s 13(1)(ia),
HMA, 1955 on the ground of cruelty. Decree sheet be drawn
accordingly. File be consigned to record room.”
12. In his appeal, the appellant has contended- and his counsel urges that
owing to his financial status and businesses, he never sought any dowry from
the respondent; on the contrary, he ensured to the best of his ability that the
respondent and their children led a comfortable life. It thus came as a
shocker to the appellant that after having an incident free marriage for 18
years, the respondent would initiate divorce proceedings against the
appellant. The appellant, however, maintains that it was hardly a coincidence
that the respondent filed the divorce petition at the same time the appellant
found out about her extra-marital affair with Himanshu who has been
impleaded as second respondent in the present proceedings. The appellant
avers that the respondent threw all caution to the wind while getting intimate
with Himanshu in public and many family members as well as friends of the
appellant have seen the respondent with the latter. In the appeal, the
appellant maintains that the respondent still has an extra-marital affair and
sought dissolution of marriage so that she could remarry.
13. Counsel for the appellant also argued that the Family Court fell into
error in holding that the wife’s unfounded allegations of dowry harassment,
and other such wild assertions completely undermined her credibility. Her
evidence had to be read as a whole; the Court, he submitted, was unduly
swayed by the Police complaints lodged by the wife, over which the
appellant husband had no control. The truth of those allegations- in the
police complaint- had never been established in any credible manner; there
was nothing to suggest that such complaints had been followed up with
investigation or any indictment. Therefore, the learned Family Judge should
not have based his findings on the appellant’s supposed cruelty, on such
scant materials.
14. It is further contended by the appellant that after conclusion of
evidence the matter was fixed for oral arguments but due to a personal
difficulty of the appellant’s lawyer, he could not appear before the Family
Court. The appellant sought and was refused adjournment and on the next
date impugned judgment and decree was passed. In the context of these
allegations it is relevant to produce the following extract from the impugned
judgment:
“32. ….. He was cross examined on 19.04.2011, 16.05.2011,
06.11.2012, 07.11.2012, 22.11.2012, 24.10.2013. Thereafter
on one pretext or the other the respondent shyed away from
subjecting himself to his cross examination and his cross
examination was closed by order of the court and his efforts to
reopen his cross examination by obtaining a favourable order
from Hon’ble High Court could not succeed on account of his
failure to abide by the directions of Hon’ble High Court in this
regard in letter and spirit.”
It was submitted that the appellant was not given sufficient opportunity to
establish his case, as his evidence was prematurely closed.
15. Counsel for the wife urged that the husband’s inability to prove the
wild and reckless allegations constituted cruelty. Besides, submitted the
learned counsel, the last instances of cruelty- physical and mental, were
substantiated by convincing evidence. Therefore, he urged the court not to
interfere with the findings and judgment of the Family Court.
Analysis and Findings
16. A combined reading of the order of this Court dated 06.07.2015 as well
as the above extract show that despite giving several opportunities to make a
representation, the appellant was only interested in prolonging the litigation
and did not take the opportunity afforded by this court seriously. It was
observed in the judgment of this court, dated 06.07.2015 as follows:
“ 10. The order dated 17.03.2015, the relevant portion whereof
has been extracted hereon above, is clear as daylight. There
can be no ambiguity or confusion about the terms on which the
petitioner was granted one last opportunity to lead his evidence
and cross examination. Admittedly, the petitioner has not
availed the said opportunity. He did not pay in advance the
aggregate costs of Rs.50,000/- before offering himself for crossexamination.
The submission that the petitioner was under a
bonafide belief that the earlier cheque of Rs.20,000/- had been
encashed by the respondent/wife is untrue to the record. As
noticed above, the cheque of Rs.20,000/- given to the
respondent on 30.04.2013 had not been encashed on account of
the same containing unwarranted writings at the back, and by
subsequent order of 10.09.2013, the petitioner was instructed to
bring another cheque, which he failed to do. While passing the
order dated 17.03.2015, this Court was conscious of the fact
that the earlier costs of Rs.35,000/- was outstanding, and this
was so recorded in the order dated 17.03.2015. The petitioner
was also conscious of this position and, therefore, did not come
back to the court to submit that the costs are not Rs.35,000/-
but only Rs. 15,000/- - on the assumption that the earlier
cheque of Rs.20,000/- given to the respondent had been
encashed.
11. Despite this being the position, even on the date fixed for
recording his cross examination, the respondent only tendered
two cheques of Rs. 15,000/-. If he were serious about
compliance of the order he would have either brought cash or
pay order for the entire amount of Rs.50,000/-.
12. The conduct of the respondent has to be viewed in the light
of the earlier proceedings. It is seen from the earlier
proceedings that on repeated occasions, the respondent did not
appear and offer himself for cross examination, which is why
his right to lead evidence and cross examination was closed.
Thus, this Court, while indulging in the petitioner on
17.03.2015 observed that on merits the petitioner was not
deserving of relief, i.e. of interference with the orders dated
13.05.2014, 06.10.2014 and 21.01.2015. It is clear that the
petitioner is only seeking to drag the proceedings and to
prevent the conclusion of the proceedings before the Family
Court. I am, therefore, not inclined to grant any further
indulgence and I find no error of jurisdiction in the impugned
order.”
17. In these circumstances it is not for the appellant to urge that he was
not given an opportunity to represent himself adequately. As is apparent
from the record, the appellant defaulted time and again with payment of
amount, which was the condition precedent for his appearance. This Court
by its order dated 17.03.2015 felt it proper in the interest of justice to allow
the appellant a chance of cross-examination despite there being no merit in
his arguments. The appellant chose to fritter away the opportunity given to
him through his callous attitude and is estopped through his conduct from
raising such ground in appeal.
18. On the merits, the trial Court was of the opinion that the appellant had
caused mental cruelty to the respondent wife by making utterly unfounded
allegations of adultery against her. In his appeal, the husband claims that his
counter claim for restitution of conjugal rights should be allowed. The
learned Judge rejected it on the ground that the firstly the appellant’s
remarks against his wife inflicted cruelty on her and secondly restitution
could not come with riders (the sort the appellant placed) given the
circumstances of the case; he claimed restitution subject to the respondent
giving up her adulterous relationship. The Court also referred to a newspaper
article, which was published at the direction of the appellant which reported
the dismissed case under the Domestic Violence Act and referred to the
respondent as adulterous. The article has been admitted by the appellant and
goes to show that the appellant was on a mission to humiliate the respondent
in public which clearly amounted to mental cruelty.
19. This court now proposes to proceed to determine whether the act of
alleging adulterous relationship in the circumstances of this case would
warrant dissolution of marriage under Section 13(1)(ia) of the Act i.e.
cruelty. While Section 13(1)(ia) contemplates both physical and mental
cruelty, the current appeal pertains to mental cruelty. Mental cruelty cannot
be defined through a straitjacket formula and there is no exhaustive list as to
what constitutes it. As a starting point, to establish cruelty one may analyse
the intention, knowledge or character of the respondent, the nature of the
spouse alleging cruelty including his/her mental and physical weaknesses; in
essence there can be no general rules and one must proceed on a case-bycase
basis to determine what constitutes mental cruelty. Mental cruelty can at
times cause more grievous harm than physical cruelty and create in the mind
of the suffering spouse a reasonable apprehension that it will be unsafe to
live with the other spouse. In cases of mental cruelty the facts need to be
delved into; the Court is required to deconstruct the mental process as well as
extrapolate the effects of such incidents through evidence brought on record.
When the whole conduct of the spouse shows instances of ill-treatment
including allegations which cast aspersions on the fidelity of the other spouse
which in turn could demoralize the affected spouse causing mental agony
and stress then under such circumstances a strong case of mental cruelty
exists. The Supreme Court ruled, in Vishwanath Agrawal vs. Sarla Agrawal,
AIR 2012 SC 2586 that uncalled for allegations (of extra-marital affairs) are
bound to create mental agony and anguish. In that case, the wife had made
baseless allegations unsupported by evidence, of her husband having an
extra-marital affair. She also published an article in a newspaper making
allegations about her husband’s womanizing ways. The husband filed for
divorce on grounds of cruelty which was rejected by the trial court as well as
the High Court. However, in appeal, the Supreme Court allowed dissolution
of marriage. It was observed:
“We really fail to fathom how from this incident and some
cryptic evidence on record, it can be concluded that the
respondent-wife had established that the husband had an extra
marital relationship with Neeta Gujarathi. That apart, in the
application for grant of interim maintenance, she had pleaded
that the husband was a womaniser and drunkard. This pleading
was wholly unwarranted and, in fact, amounts to a deliberate
assault on the character. Thus, we have no scintilla of doubt
that the uncalled for allegations are bound to create mental
agony and anguish in the mind of the husband.”
20. The appellant in his written statement before the Family Court denied
all allegations levelled against him by the respondent and went on to allege
that the latter was in an adulterous relationship, without any concrete
evidence. All he produced was a photograph of the respondent with
Himanshu in Agra, which does not conclusively determine the existence of
an extra-marital relationship as alleged by him. Further, the publication of an
article in a newspaper referring to the respondent as adulterous, a fact
admitted by the appellant during trial suggests a mental element in defaming
the respondent to the world at large. It is also admitted that he inflicted
physical harm upon his son, of such kind, which led to the respondent
seeking police assistance. Under the circumstances, it is fathomable that the
respondent was not inclined to return to her matrimonial home and sought
dissolution of her marriage with the appellant. The appellant could not bring
before this Court cogent evidence to prove his wife’s affair though he still
continues to allege it. In the circumstances, the appellant’s version of events
is liable to be dismissed as being nothing but exaggerated tales.
21. Marriages- more than any other relationships- are founded and
sustained on trust and mutual understanding. If suspicion enters this
relationship, it is in the interests of both spouses to clear the air, or else
doubts would simmer, take ominous shape in the form of phantasmagoria of
enormous magnitude. In this case, the husband appears to have harboured
such suspicions, and, all too willingly allowed them to fester and assume
large proportions. Distressingly, this led him to level wild and unfounded
allegations, which he persisted with, even in the present appeal. Such
feelings are utterly unconducive of any meaningful conjugal relationships.
Cruelty, otherwise, is a phrase of many hues. Courts are advisedly
circumspect in stereotyping what is cruelty or what can be described as
cruelty because acceptable behaviour in one mileu can be entirely anathema
in another. One recollects the wise instruction of A.P. Sen, J in Shobha Rani
vs. Madhukar Reddi, AIR 1988 SC 121:
"There has been a marked change in the life around us. In
matrimonial duties and responsibilities in particular, there is a
sea change. They are of varying degrees from house to house or
person to person. Therefore, when a spouse makes complaint
about the treatment of cruelty by the partner in life or relations,
the Court should not search for standard in life. A set of facts
stigmatized as cruelty in one case may not be so in another
case. The cruelty alleged may largely depend upon the type of
life the parties are accustomed to or their economic and social
conditions. It may also depend upon their culture and human
values to which they attach importance. The Judges and
lawyers, therefore, should not import their own notions of life.
Judges may not go in parallel with them. There may be a
generation gap between the Judges and the parties. It would be
better if the Judges keep aside their customs and manners. It
would be also better if Judges less depend upon precedents."
Cruelty therefore, is contextual- to the times, to the place, to the station in
life of the spouses and attendant circumstances. In a bye-gone era, perhaps it
might have been acceptable for a husband to level unfounded allegations of
adulterous relationships of the wife; not any longer. It is at once traumatic
and destructive of the very foundation of matrimony.
22. For the above reasons, this Court is of the opinion that the Family
Court’s order granting divorce to the respondent and disallowing the
appellant’s counter claim is justified and need not be interfered with. The
appeal, therefore, is dismissed. There is no order, in the circumstances, as to
costs.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
AUGUST 03, 2016
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