Vishnu Dutt Sharma vs Manju Sharma
2007 Latest Caselaw 928 Del

JUDGMENT

S. Muralidhar, J.

1. The Appellant here challenges the judgment dated 6.8.1996 passed by the Additional District Judge, Delhi, dismissing his petition, HMA Case No. 332/1995 seeking divorce from the Respondent wife on the ground of cruelty.

2. The marriage took place on 26.2.1993 and a female child was born to the appellant and respondent on 6.12.1993. In the petition filed by the appellant, it is stated that soon after the marriage, the Respondent was behaving in a cruel manner derogatory to the appellant and the family members, that the Respondent avoided staying in the matrimonial home and never remained there for more than 25 days together; and that after leaving the matrimonial home on 19.5.1993 while she was pregnant with the child, the Respondent never returned to live with the Appellant. The father of the Respondent is a retired Sub-Inspector of the Delhi Police and the brother is a Constable and both used to extend threats to the Appellant and his family members that they would be implicated in false police cases.

3. It is then stated that at the engagement ceremony of the brother of the Appellant which took place on 12.2.1994, the Respondent reached the matrimonial house, behaved violently by destroying articles in the house and created a big scene that surprised everyone. The parties went to the police station and settled the matter. According to the Appellant he and the Respondent started living separately from his parents since then. However, the unpleasant incidents were repeated on 27.2.1994 at the Sagai ceremony of the younger brother and on 5.3.1994 on the date of the marriage of the younger brother. Thereafter the Respondent implicated the Appellant and his family members in a false police case under Section 406 and 498A of the IPC by way of a FIR No. 18/95.

4. The version of the Respondent in her written statement was that on 14.9.1994, the Appellant and his family members gave her a severe beating which led to her being medically examined by the doctors at Ram Manohar Lohia Hospital. A copy of the extract of the MLC register on that date has been enclosed to the written statement. It is stated that the respondent had on 5.3.1994 found that the appellant and his mother had taken the jewellery of the Respondent and given it to the wife of the Appellant's brother. When the Respondent demanded to know the reason for this, she was again assaulted, and sought to be burnt alive by the family members of the Appellant. It is her version that she kept going back to the matrimonial home till she was thrown forcibly out of the matrimonial home on 29.11.1994.

5. The Appellant examined Mrs. Rakesh Sharma, Inspector, Crime against Women Cell, Nanakpura, Delhi as PW1. She spoke about the incident on 5.9.1994 when a complaint was lodged by the Respondent. She stated that reconciliation was tried but failed. The dowry articles except the jewellery were returned to the Respondent by the husband. She stated that the parties have come to a settlement whereby it is agreed that Appellant would take a separate residence and he and the Respondent would shift over there. However, the Respondent was not prepared to go with him. Thereafter, a case was registered in the police station, Paharganj, New Delhi under Section 406 and 498A, IPC.

6. The next witness was the Appellant's uncle Shri Om Prakash Sharma who spoke about the incident on 12.2.1994 and about the settlement having take place on that date with the intervention of police. He appears to have been brought in as a witness only for the incident on 12.2.1994.

7. The Appellant examined himself as PW-3. He stated that he made three complaints to the police on 30.6.1994, 15.9.1994 and 9.11.1994 and marked exhibits of these complaints. According to him nothing came of these complaints made by him against the Respondent since her father was a retired Police Officer. He stated that the Respondent was an M.A. B.Ed. Ayurved Rattan and is employed. In his cross-examination he admitted giving in writing to the Police that he and his mother wanted to offer some of the jewellery of the Respondent to the newly wedded wife of the younger brother but that he was compelled to write this. He denied having given beatings to the Respondent on 14.9.1994 for which the Respondent was medically examined on 15.9.1994. He stated that he gave a complaint on 15.2.1994 in relation to the incident on 12.2.1994 but stated that he did not have a copy thereof.

8. The Respondent examined the proprietor of a private firm where she was working as a trainee for a brief period. She examined herself as RW-2 and spoke of the incident on 12.2.1994, and about the compromise arrived at between the parties. She further added that they have lived together till 5.2.1994 but after that the relationship again soured. She stated that on 14.9.1994 she was mercilessly beaten by the appellant and her in-laws up after they came to the house of her parents with reference to a complaint made by her against them. Her case is that she kept getting thrown out of the matrimonial home every time she returned there. She was finally thrown out on 29.11.1994. She says in her cross-examination that no medico legal case was registered as regards the incident of 12.2.1994 since she wanted to protect her matrimonial life. The Respondent's father was examined as RW-3.

9. The Trial Court after examining the evidence came to the conclusion that no case of cruelty had been made out as alleged by the Appellant. The Trial Court found that the allegation that the Respondent had falsely implicated the Appellant and his family members in the criminal case, could not be examined since that was sub-judice before the criminal court. Considering that the Respondent had been turned out of the matrimonial house and had been given beatings for which she was medically examined, it was the respondent who was treated cruelly by the appellant. The Trial Court also found that the incidents of 27.2.1994 and 5.3.1994 were not proved

10. Mr. Ravi Kant Chadha, the learned Senior Counsel appearing for the Appellant has urged that the Trial Court erred in not upholding the plea of the Appellant particularly when the evidence brought on record showed that the Respondent had made false allegations of cruel treatment against the Appellant and his family members as a result of which a criminal case was registered. According to him the false accusations of cruel treatment resulting in the registering of a criminal case would itself amount to cruelty. In particular he makes a reference to the deposition of ASI Rishi Pal in the criminal case before the Metropolitan Magistrate where he says that a complaint was received by the police on 12.2.1994 about the Respondent being set on fire which later on was found not to be true. Mr. Chadha submits that the decision in Rajinder Bhardwaj v. Anita Sharma supports the case of the Appellant. He also relies on a number of other authorities to say that the marriage in any event has completely broken down since the parties have been living separately for the last 10 years, and this Court should grant divorce on the ground of irretrievable breakdown of marriage.

11. This Court is unable to find any error in the approach of the Trial Court in this case. The allegations of cruelty made by the Appellant draw extensively on the facts and evidence which are pending adjudication in the criminal trial. To hold that a mere filing of a complaint by the Respondent against the Appellant and his family members under Section 498A and 406 IPC, itself amounts to cruelty, without those allegations being either proved or disproved in the criminal trial, would indeed be premature. It is true that an acquittal in the criminal case would render the charge to be false and give credence to the argument that a false complaint was made against the Respondent. In such event the false complaint can constitute one of the grounds of cruelty and can enable the husband to seek divorce on that basis. Even if there is acquittal, as observed in Gajjala Shankar v. Anuradha and Sheo Nath Singh v. Sujata 2007 III AD (Delhi) 673 that cannot itself constitute cruelty unless coupled with other instances. Therefore, this Court is unable to accept the submission made on behalf of the Appellant that the filing of the criminal complaint against the Appellant and his family members by the Respondent itself constitutes cruelty. The evidence of ASI Rishi Pal sought to be relied upon by the Appellant, is in the criminal case which is yet to be finally adjudicated upon. The Trial Court here was, therefore, right in declining to act upon such evidence.

12. That brings us to the incident of 12.2.1994 when the Respondent is alleged to have created a scene at the engagement ceremony of the Appellant's brother. The Appellant does not deny that there is no written complaint filed by him in regard to this incident. However, in the cross-examination, he admits to have stated before the police that he and his mother did demand jewellery for being given to the prospective bride of the Appellant's brother. Although an attempt has been made by the Appellant to say that this statement is not voluntary, it is not very convincing. It in fact lends credence to the respondent's version of the incident. The fact that the parties lived together after this incident also dilutes its impact.

13. There is also considerable discrepancy in the incident of 14.9.1994. The Respondent has categorically stated in her examination-in-chief that the Appellant and her in-laws beat her mercilessly on 14.9.1994 as a result of which she was medically examined at the Ram Manohar Lohia Hospital, New Delhi on 15.9.1994. She has also withstood the cross-examination on this aspect. On a reading of the entire evidence, it is not possible to conclude that the Appellant has been able to establish that the Respondent treated him with cruelty.

14. Although he has filed the copies of the complaints given by him to police on 30.6.1994 and 15.9.1994, the police officials were not examined to confirm if such complaints were received and acted upon. The Appellant chose to only examine one of the police officials (Mrs. Rakesh Sharma, Inspector, Crime against Women Cell, Nanak Pura, (SPW-1) to speak about the reconciliation attempted between the parties pursuant to the complaint made by the Respondent on 5.9.1994. That witness only says that the attempt at reconciliation had failed. The witness has in the cross-examination admitted that there was some dispute about the jewellery which had not been returned by the Appellant to the Respondent. This witness also does not persuade the Court to conclude that it was the Respondent who treated the appellant with cruelty. This Court does not find anything perverse in the conclusion reached by the Trial Court, on an analysis of the evidence, which calls for interference by way of the present appeal.

15. In most of the appeals in matrimonial matters, particularly those that have been pending in the Court for several years, the Appellant seeking divorce invariably advances an argument of irretrievable break down of the marriage on account of the long years of separation brought about the litigation itself. An Appellant seeking divorce seeks to base such submission on the judgments of the Hon'ble Supreme Court in Naveen Kohli v. Neelu Kohli AIR 2006 SC 167 and Durga Prasanna Tripathi v. Arundhati Tripathy AIR 2005 SC 3297. Here too, a similar plea is advanced by the appellant.

16. The Hon'ble Supreme Court has in Shyam Sunder Kohli v. Sushma Kohli 2004 (2) HLR 513 itself earlier advised caution in readily accepting such a plea made on behalf of a party, which may have been responsible for bringing about the long years of separation and consequently the breakdown in the marriage. Accepting such a plea by the delinquent party would put the party which succeeded in the trial court to actually suffer an order to its disadvantage.

17. In the instant case, the Respondent wife has both before the Trial Court and this Court being able to demonstrate that far from treating the Appellant with cruelty, she in fact suffered cruelty at the hands of the Appellant. To grant divorce to the Appellant despite this only on the ground of irretrievable breakdown would not, in the view of this Court, being doing justice to the Respondent. A second factor that weighs with the Court, is the preparedness of the Respondent to still live with the Appellant. These are the factors that weigh against the Appellant and do not permit Court to accept the plea of irretrievable break down of marriage.

18. For all of the above reasons, no ground is made out for interference in this appeal. It is dismissed as such.