Ramparkash vs Sureshwati
2009 Latest Caselaw 2311 Del

6
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +      FAO No. 425/2001

%                             Date of decision: 28th May, 2009

      RAMPARKASH                            ..... Appellant
                       Through : Mr. Prag Chawla, Adv.
                  versus

      SURESHWATI                             ..... Respondent
                         Through : None.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may     YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?    YES

3.      Whether the judgment should be            YES
        reported in the Digest?

                          JUDGMENT (Oral)

1. The appellant has challenged the judgment of the learned

Trial Court whereby the petition for divorce filed by the appellant

under Section 13(1)(ia) of the Hindu Marriage Act,1955 was

dismissed.

2. The parties were married according to the Hindu rites and

ceremonies on 25th November, 1988. The appellant filed the

petition for divorce on the ground of cruelty under Section

13(1)(ia) of the Hindu Marriage Act, 1955 on 5th November, 1989

on various grounds inter alia that the respondent filed a false

complaint against the appellant before the Police in pursuance to

which the appellant was arrested on 2nd October, 1989 and

remained in custody for 17 days.

3. On the basis of the aforesaid complaint, FIR No.228/89 was

registered against the appellant. While the appellant was in

custody, he agreed to compromise the matter with the

respondent on 16th October, 1989 but the respondent did not

withdraw the police complaint which remained pending against

the appellant and on 21st May, 1991, the respondent left the

matrimonial home along with her brother and has not returned

back since then. The parties are living separately since 21 st May,

1991.

4. The learned Trial Court dismissed the petition of the

appellant on the ground that the filing of the complaint with the

police authorities does not amount to cruelty because no judicial

finding has come in the criminal case to show that the allegations

leveled by the respondent in her complaint were false and the

criminal case was still pending.

5. The learned counsel for the appellant submits that the

criminal case filed by the respondent against the appellant has

been decided by the learned Metropolitan Magistrate vide

judgment dated 2nd April, 2002 in which the appellant has been

acquitted. The appellant has tendered the certified copy of the

judgment dated 2nd April, 2002 which has been taken on record.

The relevant findings of the learned Metropolitan Magistrate

contained in para 15 of the judgment are reproduced hereunder:-

"15. There are many loose ends in the prosecution story. Complainant has stated about the demand of cooler, plot of 500 sq.yards & ½.15,000/- whereas father of the complainant has not averred even a single word about the demand of plot and cash of Rs.15,000/-. PW-3 has stated that the demand was

raised for cooler plot & cash of Rs.30,000/- which is in conflict with the statement of PW-1 & PW-4, they have not stated anything about the cash demand. PW-1 has made allegation against her father in law in her examination in chief but in her cross examination she stated that he died about 25 years back and inadvertently his name has come in. She wanted to state about her mother in law. There have been many improvements in the sworn testimony of the complainant before the court. No report was lodged immediately after the beatings given. The present complaint was lodged only after 1 ½ years of the incident."

6. The learned counsel for the appellant refers to and relies

upon the judgment of this Court in Pinki Jain vs. Sanjay Jain,

AIR 2005 Delhi 273 where this Court has held that filing of false

complaint by the wife against the husband and in-laws amounts

to cruelty.

7. The learned counsel for the appellant also refers to and

relies upon the judgment of the Apex Court in G.V.N.

Kameswara Rao vs. G. Jabilli, (2002) 2 SCC 296 where the

Apex Court has held that filing of false police complaint and

consequent loss of reputation and standing in the society at the

instance of one's spouse amounts to cruelty.

8. The learned counsel for the appellant also refers to and

relies upon the judgment of the Apex Court in the case of

Naveen Kohli vs. Neelu Kohli, 2006 (4) SCC 558.

9. The learned counsel for the appellant has also filed an

affidavit before this Court stating that the respondent has not

challenged the judgment dated 2nd April, 2002 passed by the

learned Metropolitan Magistrate acquitting the appellant and,

therefore, the judgment dated 2nd April, 2002 has become final.

The respondent was duly served in this appeal but has chosen

not to appear before this Court to contest this appeal.

10. From the judgment dated 2nd April, 2002, it is clear that the

complaint filed by the respondent against the appellant was false.

Filing of false complaint and consequent arrest of the appellant

and remaining in custody for 17 days and consequent loss of

reputation and standing in the society at the instance of the

respondent amounts to cruelty in terms of the judgments of this

Court and the Apex Court.

11. The respondent has treated the appellant with cruelty and,

therefore, the appellant is entitled to decree of divorce under

Section 13(1)(ia) of the Hindu Marriage Act, 1955. The findings of

the learned Trial Court are, therefore, liable to be set aside.

12. The appeal is accordingly allowed and the impugned

judgment and decree are set aside and the appellant's petition

for divorce under Section 13(1)(ia) of the Hindu Marriage Act,

1955 is allowed and the marriage between the parties is

dissolved by a decree of divorce under Section 13(1)(ia) of the

Hindu Marriage Act, 1955.

13. No costs.

J.R. MIDHA, J

MAY 28, 2009 aj