Katherine vs Mr. Samuel Denial @ Chand
2001 Latest Caselaw 1085 Del

JUDGMENT

A.K. Sikri, J.

1. This petition is filed by the petitioner for divorce under Section 10 of the Indian Divorce Act (for short 'Act') or in the alternative for judicial separation under Sections 22 and 23 of the Act. The petitioner is the wife of respondent who are Christians by religion. It is stated in the petition that the marriage between the parties was solemnised on 20th October, 1993 at Sacred Heart Cathedral, Delhi in accordance with the Christian Marriage Laws, customs and ceremonies. They do not have any children out of their wedlock. The status, age and place of residence of the petitioner and the respondent before marriage and at the time of presentation of petition are as under:

PETITIONER/WIFE RESPONDENT/HUSBAND

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Status Age Place of Status Age Place of residence residence

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Before Marriage Christian 20 yrs. Type-II Christian 27 yrs. D-4/391 Bachelor Qtr.11 Sultanpuri Jalvihar Delhi Colony, Lajpat Nagar, New Delhi.

At the time of filing the petition Christian 22 yrs. Address Christian 29 years. Address as top Married as top.

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2. Learned counsel for the petitioner does not press the prayer for divorce under Section 10 of the Act as he has fairly conceded that in view of the legal position contained in Section 10, the present petition filed by the petitioner is not maintainable. It is further stated that the petitioner has filed a writ petition challenging the constitutionality of Section 10 of the Act and the same is pending before the Division Bench of this Court. The petitioner, therefore, reserves her right to move appropriate petition for divorce after the outcome of the said writ petition. This liberty is granted.

3. In so far as judicial separation is concerned, the main ground on which it is ought is that the petitioner was treated with cruelty by the respondent. Although certain allegations of adultery are also made, learned counsel for the petitioner is not pressing that ground.

4. It may be mentioned at this stage that after the summons in this petition were served upon the respondent although respondent appeared and filed the written statement. He stopped appearing thereafter. The respondent was accordingly proceeded ex-parte by order dated 12th October, 2000 and the petitioner was permitted to lead evidence by way of affidavit. The affidavit already filed by the petitioner was accepted and the matter listed for final disposal.

5. In the affidavit filed by the petitioner, it is stated that the respondent started torturing her for dowry since the time the petitioner came to live with him. However, in several manners the petitioner was physically and mentally tortured by respondent. It is also stated that the petitioner suffered in silence without any complaints with the full hope that her patience would bring better understanding one day. The respondent demand more dowry that includes money, scooter, T.V. and a residential flat. The petitioner was insisted to go and demand those dowry articles from her parents. However, the petitioner did not confide nor ask the respondent's demand for dowry to her parents. This made him more angry and violent. the petitioner was threatened and beaten continuously by the respondent for her refusal of asking more dowry from her parents. The respondent had even threatened to kill the petitioner with a sharp weapon. He often beat her up mercilessly with a sharp weapon which wounded her physically. It is also stated that while beating the petitioner up and demanding more dowry the respondent used to say, "you are the only daughter of your parents and they are bound to fulfill all your demands at atleast for the sake of your life and honour. Hence it is in your own interest that you get more money from your parents otherwise I will not even hesitate to murder you." On several times the petitioner at the instance of the respondent and being forced by the beating and threat had gone to her parents and brought money and valuables including rice, wheat, etc. Even though petitioner's parents were willing to fulfill the demands of the respondent, being afraid of the threat to the security and family life of the petitioner, the petitioner did not want to put her parents into greater difficulty. On a particular day in the month of March, 1994 on the petitioner's refusing to go and bring more money from her parents, the respondent beat her up very badly and threatened her to burn her to death by pouring kerosene. At the end, the respondent even attempted to pour kerosene and burn her and the neighbours came running hearing the noise of the altercation and intervened and saved her. The respondent always used to keep two dangerous weapons with him threatening that he would use them against the petitioner. These weapons were, 1) rampuri knife, 2) Darex France. The second weapon was a foreign made weapon and the petitioner used to shiver at the sight of the said weapon. Even while sleeping the respondent used to keep these weapons under the pillow. The petitioner used to get up in sleep having bad dreams of the respondent's using the weapons against her. On 25th May, 1994 the respondent demanded the petitioner to go and bring Rs. 10,000/- from her parents and at her refusal beat her up very badly and closed her inside the room. The respondent even attempted to use the weapon to cut the veins of the petitioner. The petitioner somehow picked up the foreign made weapon which fell down from the hands of the respondent during the quarrel and ran and escaped outside. The petitioner submitted the said weapon to the police together with the complaint with regard to the said incident. In addition to the complaint given by the petitioner, the petitioner's father also had given written complaints to the police. The petitioner tried her level best to remain quiet and suffer with patience as she never would like her parents to get worried about her miserable life. On one day when the petitioner came back to her matrimonial home from her parents' house empty handed, the respondent did not permit her to enter the house, she was pushed away from the door and throw out of their house at midnight around 11.30p.m. saying that the petitioner does not belong to this house any more. Such kind of cruel treatment effected her desperately. Therefore, she has no other alternate means except to return to her parents. Despite the petitioner's frequent request to understand her parents' financial burden which would be difficult for her parents to bear responsibilities for two families. She also tried to bear the problems by herself for quite some time but her husband and her in-laws would never realise their cruelty towards her. The respondent never bothered to provide the petitioner proper clothes to wear except the dresses she brought during her marriage time. On 26th May, 1994 finding no other option, she left her matrimonial home and also left behind all her belongings-jewlleries and clothings and returned back to her parents' house.

6. From the aforesaid unrebutted testimony of the petitioner, the petitioner has been able to prove the case of cruelty.

7. This petition is accordingly allowed. Decree for judicial separation on the ground of cruelty is passed under Sections 22 and 23 of the Act. Decree be drawn accordingly. No cost.