Wednesday, 30 November 2016

Whether unilateral termination of pregnancy by wife amounts to cruelty?

 Admission by the respondent in the instant case of her suffering
from depression; denial by her in the instant petition of leaving her
matrimonial house without informing to visit Vaishno Devi on March 20,
2007, but proved in the Guardianship Petition are telling evidence in
favour of the appellant and against the respondent and we see no reason
to disbelieve the appellant regarding the rest. It is thus not a simple case
of oral evidence which would be in the category of word of mouth versus
word of mouth. The unilateral termination of the second pregnancy by
the respondent proved by Ex.PW-1/5 adds on to the mental torture
inflicted upon the appellant.
12. Regretfully, these aspects have been overlooked by the learned
Judge, Family Court.
13. The totality of the evidence establishes not only mental cruelty but
even desertion and thus the appellant would be entitled to the marriage 
being annulled by grant of decree for divorce on grounds of cruelty as
well as desertion.


 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Date of Decision : November 21, 2016
MAT(FC) No.23/2015 
SANJIV KUMAR JINDAL ANIL KUMARI @ NEELAM 
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE YOGESH KHANNA



1. The thematic setting of the case pleaded by the appellant seeking
dissolution of the marriage solemnized on December 18, 1999 with the
respondent as per Hindu Rites and Customs is that right from day one of
the marriage the attitude of the respondent was cold towards him and his
family members. Residing with his parents, appellant’s mother had to
perform all household chores. As a working lady, the respondent would
leave the house early morning at 8.00 A.M. This queer conduct of
respondent baffled the appellant and his parents who discussed the same
with parents of the respondents but got no satisfactory answer. Returning
home late everyday, when questioned, respondent would tersely say that
nobody had a right to interfere in her personal life. On the occasion of
the marriage of her brother the respondent left the matrimonial home on
June 10, 2000, by which date she was in the family way but did not tell 
the appellant or his family members of the same. She never returned to
her matrimonial house and gave birth to a male child on March 29, 2001,
for which no information whatsoever was given to the appellant or his
family members and this caused immense mental torture when they learnt
that the respondent was blessed with a male child. All of a sudden, on
June 02, 2001, accompanied by the infant son born, the respondent and
her father came to the parental house of the appellant and assured that
henceforth respondent would behave properly. The couple were united.
Initially respondent behaved normally but with the passage of time she
became rude and callous. She even started abusing the appellant and his
family members causing humiliation and immense mental cruelty. She
behaved abnormally alleging that appellant’s family members were
stealing her medicines. The appellant thought it advisable to shift from
the house of his parents and thus took on rent a residential
accommodation at Rani Bagh. In March 2002 the appellant learnt that
the respondent was once again in the family way but she aborted the
pregnancy. On the same dates in July 2003, appellant’s mother and
minor child had to be hospitalized. Unmindful that the appellant could
not be at two hospitals and had to be where his mother was admitted, the
respondent refused to be with the child admitted in the other hospital.
Appellant’s mother was admitted at Ganga Ram hospital and the child at
G.T.K. hospital. The respondent would keep aloof and talk to herself.
Things did not improve. On May 13, 2005, the appellant took the
respondent to Vaishno Devi, and in the train she behaved abnormally by
standing near the door of the train and did not pay heed to appellant’s
request not to do so. That on March 20, 2007, the respondent vanished
from the matrimonial house and this compelled the appellant to lodge a
missing person complaint. Respondent returned the next day and said 
that she had gone to Vaishno Devi. On March 21, 2007 the respondent
permanently deserted the appellant and went to her parental house. She
did not return, till when the petition was filed in the year 2010.
2. In the written statement, the respondent denied that her behaviour
was humiliating or of a kind which caused mental trauma to the appellant
or his parents. She pleaded that her entire salary was pocketed by her inlaws
who would torture her for dowry. She said that she was compelled
to leave her matrimonial house when her brother got married due to
trauma inflicted upon her consequent to dowry demands. She admitted
that while staying with her parents a male child was born to her. She
admitted returning back to her matrimonial house on June 02, 2001 and
living separately with her husband. She denied leaving the house to make
a trip to Vaishno Devi on March 20, 2007. She denied all other
allegations, admitting that since March 21, 2007 she was living with the
parents.
3. The appellant examined himself as his witness and the respondent
examined herself as a witness. It thus became a word of mouth versus a
word of mouth; with the documentary evidence in the form of missing
persons complaint Ex.PW-1/9 lodged by the appellant and Ex.PW-1/5
being certificate issued by the competent authority in the office of the
respondent showing that for purpose of abortion the appellant had availed
leave in the month of February, 2002. Other exhibited documents are not
being noted because they are irrelevant.
4. Truth seeps out when least expected. Notwithstanding the
appellant not having pleaded the respondent suffering from some kind of
a mental disability, we find that in cross-examination the respondent has
admitted as under:
“I cannot say from which date I am not feeling well.
After the marriage, I got started treatment. I am
suffering from the disease of the depression. Now, I
am not taking any treatment. I have got a treatment
from Maharaja Agrasain Hospital from the doctor
Sh.Rajiv. Lastly I had got treatment of Dr.Gupta in
2010. After 2010 I did not take any treatment from
any doctor. I had signed all the papers which filed in
the Court.”
5. The respondent has led no evidence that her entire salary was
withdrawn, a fact which she could have easily proved with reference to
her bank record.
6. Deviating a little it assumes relevance to note that when instant
proceedings out of which impugned order was passed, which commence
in the year 2010, the appellant had sought custody of Vishal, the son born
to the parties and simultaneously evidence was being recorded in
G.P.No.48/2010.
7. The same Judge who has authored the impugned judgment decreed
appellant’s petition on May 11, 2015. Impugned decision dismissing
appellant’s petition seeking divorce is dated December 22, 2014.
8. It appears that the counsel for the appellant led better evidence in
the Guardianship Petition for the reason, in said case the respondent was
confronted with the evidence of making a trip to Vaishno Devi on March
20, 2007. She admitted that she went to Vaishno Devi without informing
her husband but said she did not to seek divine blessings. Evidence was
led in said case evincing that the respondent was under psychiatric
treatment at Maharaja Agrasain hospital, Psychiatric Centre Santulan and
Ram Manohar Lohia hospital. Since the record was with the respondent
she hid the complete record as has been observed in the order dated May
11, 2015, but her claim that she started suffering from depression since 
the year 2009 was found to be false inasmuch as there was evidence that
she was undergoing psychiatric treatment from a date prior thereto.
9. The conduct of the respondent which has been pleaded by the
appellant and in respect of which he could do no more other than depose
on oath is consistent with the paranoid behaviour of the respondent. This
explains her leaving house early and returning late evening. This
explains her accusing her in-laws of stealing her medicines. It is
apparently a case where the respondent hid the truth of her suffering
from, if not more, at least depression. The appellant and his family
members were just not able to understand what was happening. Her
abusive behaviour. Her leaving the house without informing her
husband. Her going to Vaishno Devi without informing her husband.
10. The respondent has not examined her father who would be the best
witness to establish the dowry demands.
11. Admission by the respondent in the instant case of her suffering
from depression; denial by her in the instant petition of leaving her
matrimonial house without informing to visit Vaishno Devi on March 20,
2007, but proved in the Guardianship Petition are telling evidence in
favour of the appellant and against the respondent and we see no reason
to disbelieve the appellant regarding the rest. It is thus not a simple case
of oral evidence which would be in the category of word of mouth versus
word of mouth. The unilateral termination of the second pregnancy by
the respondent proved by Ex.PW-1/5 adds on to the mental torture
inflicted upon the appellant.
12. Regretfully, these aspects have been overlooked by the learned
Judge, Family Court.
13. The totality of the evidence establishes not only mental cruelty but
even desertion and thus the appellant would be entitled to the marriage 
being annulled by grant of decree for divorce on grounds of cruelty as
well as desertion.
14. The appeal is allowed. Impugned judgment dated December 22,
2014 is set aside. HMA No.11/2010 filed by the appellant is allowed.
The marriage between the appellant and the respondent is annulled by
passing a decree for divorce on grounds of cruelty and desertion.
15. Parties shall bear their own costs throughout.
 (PRADEEP NANDRAJOG)
 JUDGE
 (YOGESH KHANNA)
 JUDGE
NOVEMBER 21, 2016

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