Sunday, 4 April 2021

Can the court grant a divorce to the husband if the wife makes a false allegation of his impotence amounting to cruelty?

  As regards the allegations made in pleadings, Courts have considered

this question time and again and it is now no longer res integra that false,

baseless, scandalous, malicious and unproven allegations made in the written

statement may amount to cruelty. If it is established from the evidence that

the allegations were evidently false, then such baseless allegations made in

the written statement can amount to cruelty and the Court can pass a decree

of dissolution of the marriage. In Jayanti v. Rakesh Mendiratta, 2016 (4) CLJ 498 Del, it was held that in matrimonial proceedings, the pleadings

assume great significance. Similarly, in the case of V. Bhagat (supra), grave

false allegations were made by the wife against the husband in her written

statement. Such allegations were even put to the husband in crossexamination.

The Supreme Court held that such allegations were bound to

cause mental pain and anguish to the husband amounting to mental cruelty

and dissolved the marriage between the parties. In the present case, we

therefore agree with Mr. Prabhjit Jauhar that the allegations in the Written

Statement are grave and serious accusations, which are likely to impact

Respondent’s self-image and adversely affected his mental well-being. Thus,

having regard to the law on the subject, we find no infirmity in the findings

and observations of the trial court that the allegation of the Appellant in the

Written Statement with respect to the impotency clearly falls within the

concept of cruelty as defined under law.{Para 19}

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 MAT.APP.(F.C.) 92/2020 &CM APPLs. 14842-14843/2020

KIRTI NAGPAL  Vs ROHIT GIRDHAR 

CORAM:

HON'BLE MR. JUSTICE MANMOHAN

HON'BLE MR. JUSTICE SANJEEV NARULA


Author: SANJEEV NARULA, J.

Pronounced on: 20.11.2020

1. By way of the present appeal, the Appellant-wife has impugned the

judgment dated 22nd February, 2020 (hereinafter referred to as the

‘Impugned Judgment’) passed by the learned Principal Judge, Family

Courts, South-East District, Saket Courts, New Delhi whereby the Court,

while rejecting the relief sought under Section 12(1)(a) and (c), has allowed

the petition of the respondent by granting divorce under Section 13(1)(ia), of

the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘HMA’).

Brief facts:

2. The brief background of the case is that the marriage between the parties

was solemnized on 24th June, 2012 at Delhi as per the Hindu rites and

ceremonies. At the time of solemnization of the marriage, the Respondent

husband’s marital status was that of a divorcee and Appellant wife was a

bachelorette. After the marriage parties lived together in Singapore from 1st

July, 2012 till 26th August, 2012. The marriage was also registered in Delhi

on 31st August, 2012.

3. The Respondent initially preferred a petition seeking a decree of nullity of

marriage under Section 12(1)(a) and (c) of the HMA, on two grounds, that

the marriage could not be consummated due to Appellant’s impotency and

that his consent was obtained by concealing several material facts related to

the psychological disposition of the Appellant, knowing which, he would not

have consented for the marriage.

4. In the Written Statement filed before the Trial Court, the Appellant interalia

pleaded that: (i) the Respondent was suffering from impotency (erectile

dysfunction) which was the true cause of non-consummation of marriage,

(ii) the parents of the Respondent had a quarrelsome nature, (iii) the first

wife of the Respondent was also tortured by the parents of the Respondent,

(iv) Respondent’s parents demanded dowry, (v) cruelty and

misappropriation of dowry articles, and (vi) the Respondent thrashed the

Appellant badly in front of his parents on 30th June, 2012.

5. Placing reliance on Appellant’s written statement, the Respondent

amended his petition and additionally sought relief of divorce on the groun that the allegations made in the written statement were false and had caused him mental cruelty. On the basis of amended pleadings, vide order dated 1st

August, 2016, the Trial Court framed the following issues:

(1) “Whether the marriage has not been consummated owing to

the impotence of the respondent? OPP

(2) Whether the consent of the petitioner for marriage was

obtained by force or fraud? OPP

(3) Whether the respondent after solemnization of marriage

has treated the petitioner with cruelty? OPP

(4) Whether petitioner is entitled to decree of nullity against the

respondent? OPP

(5) Whether the petitioner is entitled to a decree of divorce?

OPP

(6) Relief.”

6. To substantiate the case, the Respondent examined himself (PW1) and

one Dr. Prof. Anant Kumar, (PW2), as expert witness, who was Chairman,

Urology, Renal Transplant and Robotics of Max Hospital, Saket, New Delhi.

On the other hand, the Appellant produced six witnesses in support of her

case. After the conclusion of trial and on the basis of the evidence produced,

the Trial Court concluded that the Respondent had failed to prove that the

marriage had not been consummated owing to the impotency of the

Appellant. Accordingly, Issue No. 1 enumerated above was decided against

the Respondent. Next, the Learned Trial Court held that no material facts

were concealed by the Appellant when the Respondent consented to the

marriage and therefore, it could not be said that his consent had been

obtained by fraud or force. Accordingly, the Issue No. 2 was also decided

against the Respondent. Resultantly, the Court held that the Respondent was

not entitled to decree of nullity against the Appellant, and Issue No. 4 was

decided against the Respondent. However, as regards Issue No. 3, the Court

held that the Appellant had made false allegations in her written statement

qua (a) the impotency of the Respondent, and (b) her harassment for dowry

and ill treatment at the hands of the Respondent and his family. These

unsubstantiated and unproved allegations were held to be the cause of

mental suffering of the Respondent. The Learned Trial Court held that the

Appellant had treated the Respondent with cruelty within the meaning of the

section 13(1)(ia) of HMA and Issue No. 3 was thus decided in favour of the

Respondent. Besides, the Court also observed that the relationship between

the parties had deteriorated to such an extent that it became impossible for

them to live together without mental agony, torture or distress. The court

observed that the marriage is beyond repair and was a dead marriage as it is

not possible for the parties to live together. Thus, Issue No. 5 was decided in

favour of the Respondent and the Learned Trial Court allowed the petition to

the extent of granting divorce under Section 13(1)(ia) of the HMA, with

effect from 22nd February, 2020.

7. Aggrieved with the above order, the Appellant has approached this court

praying for the stay and setting aside of the impugned judgment as well as

seeking directions that her petition of restitution of conjugal rights, pending

in the court of Sh. Sanjiv Jain, Judge, Family Courts, South-East District,

Saket Courts, New Delhi, be heard and decided on merits.

Appellant’s Contentions:

8. Mr. Manish Sharma, learned counsel for the Appellant argued that the

Learned Trial Court’s conclusion is not based on correct appreciation of the

facts, the evidence, as well as the law. His arguments can be summarized as

follows:

(a) Regarding claim of impotency of the Respondent:

9. Mr. Sharma emphasised that the Trial Court had erred and wholly

misdirected itself by treating the averments made in the written statement

out of context. It was insisted that the Appellant, in/through the written

statement, was only responding to the allegations made in the petition, and

give her version of facts by urging that Respondent’s impotency was the real

cause for the non-consummation of the marriage. However, it was contended

that this stand of the Appellant was neither considered nor appreciated by the

Learned Trial Court and the judgment was passed in an arbitrary manner,

with a preconceived notion. Mr. Sharma further argued that reasoning of the

Learned Trial Court is flawed, for the reason that, on the one hand it has

been observed that Appellant’s claim viz. Respondent’s impotency stood

negated owing to the fact that after about two months of marriage the parties

went ahead for registration of marriage, whereas, on the other hand, the Trial

Court without any justification or rationale failed to appreciate that the

Respondent too had also participated in the registration of marriage after

having lived with the Appellant during the above period. Arguendo, this

conduct should have been considered as negation of Respondent’s

allegations qua Appellant’s mental health and behaviour which were being

countered in the original written statement.

(b) Regarding expert witness testimony:

10. Mr. Sharma laid considerable stress that the Learned Trial Court has

erroneously relied upon the testimony of Dr. Prof. Anant Kumar to assume

that the Respondent was not impotent and to further conclude that the

allegations of the Appellant were false and scandalous. The following

reasons were put forth:

i. The conclusion arrived at by Dr. Prof. Anant Kumar were based on

assumptions and presumptions. In his cross examination, he had

admitted that he had seen the Respondent only on 12.07.2015, and he

“presumed” that the Respondent was not impotent in the year 2012.

ii. The expert witness Dr. Prof. Anant Kumar admittedly did not subject the Respondent to any investigation and relied upon purported earlier reports which were not on record.

iii. The problem of erectile dysfunction could also happen in an otherwise

physically healthy person due to lack of physical and mental stimulus.

iv. In response to a direct question, he admitted that if a person does not

like his partner, then the person may not get aroused. In furtherance of

this, reliance was placed on Sucharitra Kalsie v. Rajinder Kishore

Kalsie, 11 (1975) DLT 92, to argue that an individual can be impotent

towards his wife, but otherwise, may be able to have sexual

intercourse. Therefore, the testimony of Dr. Anant Kumar cannot be

given undue credence.

(c) Regarding claim of cruelty caused by Appellant to Respondent:

11. Mr. Sharma also argued that despite the Respondent’s false and untrue

allegations against the Appellant, she has been ready and willing to live in

the matrimonial alliance with him at all points in time. She has

communicated her desire and willingness to continue the marriage during the

pendency of the proceedings and in multiple mediations. Documents placed

on record such as emails, pictures, messages, complaints are also indicative

of the same. It is thus argued that this conduct of the Appellant, is the very

opposite of cruelty, and does not gel with the findings given by the Trial

Court to the effect that Appellant has treated the Respondent with cruelty.

12. In this regard, Mr. Sharma further argued that the Court had to judge

whether cruelty was in the nature of regular practise, for which the

Appellant’s conduct has to be seen as a whole rather than going by a specific

instance, and if so, whether it was of the type or degree which merited the

grant of divorce. He pointed out that there was no allegation of cruelty prior

to Appellant’s filing the written statement. Presumption has to be drawn in

this regard in favour of the Appellant. He maintained that a stray pleading

cannot be made a ground to grant divorce, pertinently, when the allegation

was neither raised prior to the filing of the written statement, nor shown in

the conduct of the Appellant throughout the pendency of the proceedings.

The Appellant has been seeking restitution of conjugal rights since

beginning and was ready and willing to save matrimonial alliance with the

Respondent and therefore, the impugned judgment should be set aside.

Respondent’s Contentions:



13. Mr. Prabhjit Jauhar, learned counsel for the Respondent on the other

hand strongly opposed the petition and argued that the findings of the

Learned Trial Court were wholly justified on the basis of the pleadings and

the evidence produced before the Court in the nature of oral testimonies and

the documentary proof.

14. He argued that the Appellant had made grave allegations against the

Respondent and his family, especially those concerning Respondent’s

impotency. These allegations remained unsubstantiated despite Appellant

producing five witnesses along with her own deposition. Particularly, she

made no effort to produce any evidence to justify or prove her allegations.

Mr. Jauhar asserted that, in the absence of any documentary or medical

evidence that could suggest that the Respondent was unfit to consummate

the marriage, the Learned Trial Court has rightly held such allegations in the

Written Statement to be false and amounting to mental cruelty. Likewise, the

allegations regarding Appellant being mistreated and tortured at the hands of

the parents of the Respondent also remained unsubstantiated.

15. Further, Mr. Jauhar vehemently argued that aside from the above, the

Appellant had made reckless and venomous allegations qua the Respondent,

and no self-respecting person would like to continue in a matrimonial

alliance with a partner who makes such allegations. Some of these have been

presented to us as under:

i. Appellant has alleged that the Respondent “considers women to be as

a part of disposable commodity and he specializes in disposing them

off without any further thought till he preys upon his next hapless

victim.”

ii. Even in the present appeal, the Appellant has not spared the

Respondent and has called him a “serial marrier” in the pleadings,

who “marries and dumps young women without any reason as and

when he pleases” and who “has a kink of marrying the girls for less

than a couple of months and then divorcing him for no fault of

theirs.”.

iii. In the present appeal, in another paragraph it is alleged that “the

respondent has a fixed pattern and style whereby he marries women

just for a couple of months and then when he gets fed up of them, he

tries to get rid of them by making all sorts of false allegations and

character assassinations.”

16. Lastly, Mr. Jauhar submitted that since 3rd September, 2012, the parties

have been living separately, due to which reconciliation is impossible and

the marriage has irretrievably broken down and thus there is no reason to

carry on with the marriage which is dead for all intents and purposes.

Findings:

17. We have given due consideration to the rival contentions urged before us

and have carefully perused the record. The learned Trial Court has dissolved

the marriage between the parties on the ground of cruelty within the meaning

of Section 13(1)(ia) of the HMA. This finding is primarily premised on the

allegations made by the Appellant in her Written Statement to the original

petition filed by the Respondent under Section 12 of the HMA. Thus, the

nature and the extent of allegations made by the Appellant is beyond any

controversy. These allegations can be broadly categorised under two

different compartments: (i) allegations pertaining to the impotency of the

Respondent, and (ii) allegations with respect to mistreatment, torture and

dowry demand against the Respondent and his parents. These allegations

laid the foundation for the ground of cruelty. The Respondent brought in

evidence to establish before the Court that he was not impotent, and that the

false and untrue allegations were causing him mental stress and amounted to

cruelty. In this endeavour, besides examining himself, the Respondent also

produced Dr. Prof. Anant Kumar as an expert witness. The doctor proved the

medical report dated 12th July, 2015 exhibit (PW1/1) and was extensively

cross-examined by the Appellant’s counsel. He deposed that, on the basis of

physical examination, the Respondent was found to be a normal male adult

with fully developed secondary sexual character and organs, normal

endocrine and sexual function, and had no problem of impotence. The

Learned Trial Court concluded that the credibility of the witness could not

be impeached, and since he had specifically examined the Respondent and

found that the Respondent suffered no medical infirmity that could render

him incapable of consummating the marriage, the allegation of impotency

made by the Respondent was not proved. The witness is a very highly

qualified medical expert with immaculate credentials. His testimony has thus

been rightly relied upon by the Learned Trial Court to give a finding on this

issue in favour of the Respondent and we find no reason for interference on

this score. Further, we also agree with the observations of the learned trial

court that, it was imperative for the Appellant to produce positive evidence

to substantiate and prove the allegations made in the written statement(such

as medical evidence) in order to counter the evidence and the expert witness

testimony produced by the Respondent. After all, these accusations were

levelled by the Appellant and the onus lay on her to establish the veracity of

same. Concededly, the Appellant entirely failed to produce any medical or

corroborated evidence that could remotely suggest that the Respondent was

medically unfit to consummate the marriage. Therefore, in absence on any

such evidence, Appellant’s allegations remained unsubstantiated.

18. Now the next question is whether a false allegation of impotency

amounts to cruelty within the meaning of Section 13(1)(ia) of the HMA. It is

true that cruelty has not been defined in the HMA. It can be physical or mental. It is primarily contextual, pertaining to human behaviour or conduct

with respect to matrimonial duties and obligations. It is therefore, essential

to see whether the conduct of the party is of such a nature, that a reasonable

person would neither tolerate the same, nor be reasonably expected to live

with the other party. The Supreme Court in the case of V. Bhagat v. D.

Bhagat, AIR (1994) SC 710, observed as under:-

“Mental cruelty in Section 13(1)(ia) can broadly 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. In other words, mental cruelty must be of such a

nature that the parties cannot reasonably be expected to live

together. 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. It is not necessary to prove

that the mental cruelty is such as to cause injury to the health of

the petitioner. While arriving at such conclusion, regard must be

had to the social status, educational level of the parties, the

society they move in, the possibility or otherwise of the parties

ever living together in case they are already living apart and all

other relevant facts and circumstances which it is neither possible

nor desirable to set out exhaustively. What is cruelty in one case

may not amount to cruelty in another case. It is a matter to be

determined in each case having regard to the facts and

circumstances of that case. If it is a case of accusations and

allegations, regard must also be had to the context in which they

were made.”

19. As regards the allegations made in pleadings, Courts have considered

this question time and again and it is now no longer res integra that false,

baseless, scandalous, malicious and unproven allegations made in the written

statement may amount to cruelty. If it is established from the evidence that

the allegations were evidently false, then such baseless allegations made in

the written statement can amount to cruelty and the Court can pass a decree

of dissolution of the marriage. In Jayanti v. Rakesh Mendiratta, 2016 (4) CLJ 498 Del, it was held that in matrimonial proceedings, the pleadings

assume great significance. Similarly, in the case of V. Bhagat (supra), grave

false allegations were made by the wife against the husband in her written

statement. Such allegations were even put to the husband in crossexamination.

The Supreme Court held that such allegations were bound to

cause mental pain and anguish to the husband amounting to mental cruelty

and dissolved the marriage between the parties. In the present case, we

therefore agree with Mr. Prabhjit Jauhar that the allegations in the Written

Statement are grave and serious accusations, which are likely to impact

Respondent’s self-image and adversely affected his mental well-being. Thus,

having regard to the law on the subject, we find no infirmity in the findings

and observations of the trial court that the allegation of the Appellant in the

Written Statement with respect to the impotency clearly falls within the

concept of cruelty as defined under law.

20. We cannot accede to the contention of Mr. Sharma that the allegation of

impotency attributed to the Respondent was only qua the Appellant. In

support, reliance placed on a portion of the statement of the medical expert

Dr. Kumar, to the effect “In unusual situations like this when a person does

not like the partner, or the environment is not conducive, he may not get an

erection” is misplaced and out of context. This response is part of a longer

answer to the question whether “a person with a normal sperm count can be

impotent”. Moreover, this is the general opinion of the expert on the subject.

It was for the Appellant to produce evidence to establish the extent and

nature of impotency of the Respondent, as is now being portrayed before us.

She ought to have applied to the Trial Court to have the Respondent


medically examined in this regard. Undeniably, no such attempt was made.

Since no evidence was produced by her to substantiate her case, this plea has

no basis and is rejected.

21. We are also not at all persuaded by the explanation offered by Mr.

Sharma for making allegations that are in controversy. Mr. Sharma argued

that the allegation of impotency was in retaliation to the Respondent’s

allegation of impotency towards the Appellant. He laid considerable stress

on the fact that, as the allegations in the petition were of a serious nature and

since the Respondent was casting aspersions on Appellant’s sexual

behaviour, she was justified in retorting by making a counter-allegation. This

explanation is wholly unconvincing, and does not dilute the act of cruelty

committed by her. Besides the explanation is legally untenable and cannot be

accepted. The averments made by a party in its pleadings before a Court of

law have to be given due sanctity and have to be treated with seriousness.

These allegations made in the pleadings are brought in the public domain

and the Court is expected to give its verdict on the basis of the allegations

and the counter-allegations made by the parties. No party can be excused of

recklessness in allegations made before the Court of law. The consequences

of false assertions have to follow. Allowing the respondent to get away with

the consequences of false allegations, or treating them as trivial, would not

advance the cause of justice. Even in V. Bhagat’s case (supra), the Supreme

Court had taken a strong view of the matter with respect to false allegations,

opining that such allegations made in a formal pleading filed in the Court

went far beyond the reasonable limits of the wife’s defense. Particularly, in

the context of the proceedings under the HMA, Section 20 specifically

MAT.APP.(F.C.)92/2020 Page 14 of 17

stipulates that the averments made in the pleadings will be treated as

evidence and the court is thus empowered to act upon unfounded allegations

made in pleadings. The assertions in the pleadings are to be supported by

affidavit in terms of the HMA and the rules framed thereunder. The purpose

of having an affidavit accompanying the pleadings is to give due sanctity to

the same. In fact, now the rules of pleadings under several jurisdictions have

evolved and they prescribe that the petitions be accompanied by a

‘Statement of Truth’. All of these are methods to ensure that no party may

level untrue allegations against the other in a court of law as mere counterattack

or in vengeance. We cannot allow the parties to be so casual about the

averments made in the pleadings. There can be no justification for any party

to retaliate by making untrue and false allegations regardless of how

provocative the allegations may be. If the Appellant was hurt by the

allegations made by the Respondent, she had her legal remedies against the

same. It did not certainly give her a carte blanche to make counter

allegations which were untrue and cause deep humiliation to the

Respondent.

22. Further, we also find that the justification put forth by the Appellant to

be contrary to the record. It was not a one-off casual retaliatory remark. The

stand in the written statement was sustained all throughout the trial, till the

stage of final decision. The imputations and allegations made by the

Appellant in the Written Statement have been repeatedly reinforced during

trial by giving suggestions to the Respondent and also to his expert witness

during the course of their cross-examinations. Significant effort was made to

establish that the Respondent was indeed impotent and incapable of sexual

MAT.APP.(F.C.)92/2020 Page 15 of 17

intercourse. This line of cross-examination of the Respondent and his expert

witness clearly establishes that the Appellant endeavoured to attribute the

non-consummation of marriage to the Respondent’s impotency. In fact, in

the cross-examination and also in the pleadings, the Appellant has attempted

to establish that Respondent’s first divorce was also related to his sexual

incompetence. We, thus not find any merit in the contention of the Appellant

that the allegations of cruelty are only based on one stray incident. We do

not find any infirmity in the finding of the Learned Trial Court on this aspect

as well.

23. As regards Appellant’s allegations relating to torture and mistreatment,

we do not find anything wrong with the finding of the Learned Trial Court.

The Learned Trial Court had meticulously examined the evidence produced

before it and concluded that these allegations remained unsubstantiated and

there is no reason to take an exception to the findings recorded by the Trial

Court. The Appellant has not been able to establish her case that she was

mistreated or tortured. In the absence of any cogent and independent

evidence put forth by the appellant, the allegations levelled by her remain

unsubstantiated and unproven.

24. We also do not agree with the Appellant that cruelty in the present case

was not a sustained or severe one. The Supreme Court has elaborately

discussed the concept of mental cruelty in Samar Ghosh v. Jaya Ghosh

(2007) 4 SCC 511. Indeed, mental cruelty is a state of mind and what might

be cruelty in one case may not be so in another case, as observed by the Trial

Court. The Court has carefully examined the facts and evidence and


observed that the allegations are scandalous and malicious. Appellant

persistently humiliated the Respondent causing him mental agony, pain and

suffering. The cruelty in the instant case is of enduring and profound nature.

Thus, notwithstanding the fact that there is no allegation of cruelty in the

original petition, the Trial Court was justified to conclude that it was of

grave nature that caused lasting disruption in the relationship between the

parties. We also note that the Appellant’s conduct of making unfounded

allegations has continued right up to the appellate stage, as has been pointed

out by Mr. Jauhar in his submissions. These false accusations which could

not be proved are bound to cause deep hurt and anguish to the Respondent,

who can reasonably apprehend that it would be perilous for him to live with

the appellant. It is also abundantly clear that due to the mental pain, agony

and suffering caused by the false accusations, the Respondent cannot be

asked to put up with the conduct of the Appellant and to continue to live

with her. Therefore, we do not find any infirmity in the impugned judgment

on this ground as well.

25. Lastly, we also do not find any infirmity in the approach of the Learned

Trial Court by placing reliance upon the judgment in Samar Ghosh (supra),

on the aspect of irretrievable breakdown of marriage. Undisputedly, the

Appellant and the Respondent have been separated for more than eight years

and since the separation has continued for a sufficient length of time, it can

be presumed that the marriage has irretrievably broken down. The Trial

Court has noted that although irretrievable breakdown of marriage is not a

ground for divorce in the statute, however the courts have been taking this

aspect into consideration. There has been a prolonged and continuous

separation, and the matrimonial bond is beyond repair. Therefore, refusing to

severe the matrimonial ties would cause further mental cruelty to the

Respondent. In view of the totality of the circumstances, evident from the

nature of allegations and counter allegations made by the parties and the

evidence that has come on record, the conclusion drawn by the Trial Court

cannot be faulted with.

26. In view of the foregoing, we find no merit in the present appeal.

Accordingly, the appeal and the applications are dismissed.

SANJEEV NARULA, J

MANMOHAN, J

NOVEMBER 20, 2020

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