Delhi High Court
Madhu Rani vs Gagan Tyagi on 28 April, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT APPEAL No.57/2010
Date of Decision: April 28, 2010
MADHU RANI ..... Appellant
Through: Mr. Kamaldeep Taliyan,
Advocate.
Versus
GAGAN TYAGI ..... Respondent
Through: None.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(3) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
1. Under challenge in this appeal is the judgment and decree of
the Additional District Judge, whereby petition of the respondent under
Section 13(1) (i-a) of the Hindu Marriage Act (hereinafter referred to as
'HM Act') was allowed and marriage between the parties was dissolved by a
decree of divorce.
2. Briefly, facts of the case are that parties to the petition were
married according to Hindu Rites and Ceremonies on 21st February, 2002.
Out of their wedlock, a female child was born on 27 th September, 2003.
The said child is in care and custody of the respondent (herein). Appellant
allegedly committed acts of cruelty towards respondent on various
occasions which made it difficult for him to continue with the marriage and
parties separated on 25th October, 2004. Hence, petition was filed seeking
divorce on the grounds of cruelty.
3. Appellant contested the petition. On the pleadings of the
parties, Trial Court framed the following issues on 12th March, 2009:-
"1. Whether the respondent has treated
the petitioner with cruelty? OPP
2. Relief."
4. Respondent has averred following specific instances of
cruelty committed by the Appellant:-
(1) Appellant had concealed that she had conceived prior to her marriage
and got her pregnancy aborted from a well known hospital in Ghaziabad,
which fact he came to know when he took her to gynecologist for her
check-up because she was unable to conceive after marriage.
(2) Appellant concealed that she had been suffering from tuberculosis
and breast cancer.
(3) On 24th October, 2004 i.e. after marriage, she caught hold of the
Respondent from his collar and pulled his hair and when his mother tried to
intervene, Appellant caught hold of her hair and dragged her and thereafter
on 25th October, 2004 she left the matrimonial home after taking her
jewellery, stridhan, etc. without informing the respondent or his family
members. She also left behind the daughter, who was just about one year
old, at the mercy of family members of the respondent.
5. Appellant did not cross-examine the respondent regarding incident of
24th October, 2004 when she had allegedly given beatings to the respondent
and his mother. It is of significance that Appellant also did not cross-
examine the respondent regarding allegation that before marriage she got
herself aborted. Similarly, there is no specific cross-examination of the
respondent regarding concealment of serious ailments suffered by her
before marriage.
6. Under these circumstances, Trial Court rightly considered non
cross-examination of respondent by the Appellant on above said acts of
cruelty, as an admission of truthfulness of the said allegations. It is trite law
that in the absence of cross-examination on a point by the opposite party,
statement on that point made in examination-in-chief is to be taken as true.
Unless credibility of the witness is impeached by giving an opportunity to
explain his statement, he cannot be considered as unworthy of reliance.
Since there is no cross-examination of the respondent and his evidence has
been allowed to go unchallenged on the above said acts of cruelty. It could
be safely accepted as correct, which in fact the Trial Court did.
7. Though it was not pleaded in the written statement, but during
cross-examination of the respondent, the Appellant tried to impeach his
character when it was suggested that he had illicit relationship with a girl
named Rashmi and also that there was dowry demand for a sum of
Rs.50,000/- from her parents. There seemed to be an intentional attempt on
the part of the Appellant to impeach character of the respondent and his
father with a view to cause mental torture and harassment. Therefore, such
like cross-examination beyond pleadings can also be considered as an act of
cruelty on the part of the Appellant. These must be false and baseless
allegations made by the Appellant against the respondent and his father.
Such like accusations and character assassinations made by a spouse against
the other, made or suggested in the cross-examination amounts to cruelty in
law.
8. Under these circumstances, it is concluded that Trial Court
assessed evidence of the parties in the right perspective to hold that
Appellant had committed acts of cruelty against the respondent within the
meaning of Section 13 (1) (i-a) of the Act.
9. Hence, I find no merits in the appeal and it is accordingly
dismissed in limine.
(ARUNA SURESH)
JUDGE
APRIL 28, 2010
sb
