Canara Bank vs The Vaish Co-Operative New Bank ...
2010 Latest Caselaw 5544 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

               MAT.APP.34/2009


                 Judgment delivered on: 08.12.2010


DEEPA @ SUNITA                                 ..... Appellant
                   Through: Mr.J.P.Mishra, Advocate.

                    Versus

MANOJ KUMAR VAID                             ..... Respondent

Through: Nemo.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

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

KAILASH GAMBHIR, J. Oral:

1. By this appeal filed under Section 96 read with

Section 28 of the Hindu Marriage Act, 1955 the appellant

seeks to challenge the judgment and decree dated 02.03.2009

passed by the learned Addl. District Judge, Delhi, whereby the

petition for divorce filed by the appellant under Section

13(1)(ia) of the Hindu Marriage was dismissed .

2. Brief facts of the case relevant for deciding the

present appeal are that the marriage between the parties was

solemnized on 16.4.2003 at Delhi according to Hindu rites

and ceremonies. The marriage was duly consummated but no

child was born out of the said wedlock. It is the case of the

appellant that the respondent was a habitual drinker and used

to beat her under the influence of liquor. She has also alleged

that the respondent and his family members harassed her for

bringing insufficient dowry. Consequently, the appellant filed

a petition for divorce on the ground of cruelty which vide

judgment and decree dated 2.3.2009 was dismissed. Feeling

aggrieved with the same, the appellant has preferred the

present appeal.

3. Counsel for the appellant states that the appeal

filed by the appellant was not opposed by the respondent and

therefore, it was obligatory on the part of the learned trial

court to have passed the decree of divorce in favour of the

appellant. Counsel also submits that even in the present

appeal the respondent has not chosen to appear to contest the

appeal and this in itself is sufficient to allow the present

appeal.

4. I have heard learned counsel for the appellant.

5. Admittedly, the respondent has not contested the

divorce proceedings either before the learned trial court or

before this court. But still this court does not find any force in

the submission of counsel for the appellant that this should be

the ground for passing a decree of divorce in the favour of the

appellant. Merely because the respondent did not choose to

appear in the divorce proceedings, this circumstance by itself

will not entitle the appellant to claim grant of decree of

divorce in her favour.

6. Coming to the merits of the case, the appellant has

claimed the decree of divorce on the ground of cruelty. It is

the case of the appellant that the respondent was a drunkard

person and used to beat the appellant under the influence of

the liquor. The learned trial court held that the appellant has

not even mentioned a single specific incident in this regard.

The other allegation of the appellant is that she was harassed

by the respondent and his family members for dowry, which

again has also not been substantiated with any details or

dates. It would be useful here to reproduce the observations

of the learned trial court in this regard here:

8. Counsel for the petitioner also pleaded that the respondent and his family members were not happy with the dowry articles given by the parents of the petitioner and they used to beat her for bringing insufficient dowry. The said plea of the petitioner is vague in nature because the petitioner has not mentioned when and what amount had been demanded by the respondent and his family members and at what time, which place and before whom she was beaten up on the said account.

9. Counsel for the petitioner further pleaded the incident of 20.10.2004 and submitted that the respondent misbehaved with the mother of the petitioner on the occasion of Diwali and threw away the sweets and gift items, as they were expecting the house. It is not the case of the petitioner that the respondent and his family members demand a house from her or her parents. As such, the said plea is vague in nature. Surprisingly, mother of the petitioner, PW-2, being the victim of the said act, has not mentioned about the said incident in her testimony. It implies that no such incident had happened with the mother of the petitioner. Hence, the plea of the petitioner is without substance.

10. Counsel for the petitioner also pleaded that on 20.02.2006, the petitioner was thrown out from her matrimonial home but she was taken back to her matrimonial home 30 days thereafter. But there was no change in the attitude of the respondent and he asked the petitioner to give divorce as he wanted to remarry. Hence, a complaint was lodged on 15.05.2006. However, the said

plea lacks material particulars and no document has been filed to substantiate the fact of complaint dated 15.05.2006. Even PW-1 and PW-2 have not deposed to that effect in their testimony. Hence, the said plea of the petitioner is not sustainable".

7. It would be useful to mention here the mandate of

Rule 7 of the Hindu Marriage Rules, 1979 of this High Court

provides that:

"R.7. Contents of petition. - In addition to the particulars required too be given under Order VII Rule 1 of the Code and Section 20(1) of the Act, all petitions under Sections 9 to 13 shall state:

(a) ...........................

(g) the matrimonial offence or offences alleged or other grounds, upon which the relief is sought, setting out with sufficient particularity the time and places of the acts allged and other facts relied upon, but not the evidence by which they are intended to be proved e.g.:

(i) ................................

(iv) in the case of alleged desertion, the date and the circumstances in which it began; in the case of cruelty the specific acts of cruelty and the occasion when and the place where such acts were committed................"

It would be evident from above that the rule prescribes that a

petition filed under Sections 10 & 13 shall state the alleged

acts of cruelty with significant particulars and the places of

the acts alleged. Hence, this Court does not find any infirmity,

illegality or perversity in the said judgment and decree passed

by the learned trial court taking a view that the allegations of

cruelty leveled by the appellant not only lack in particulars,

but are also trivial in nature. The appellant has miserably

failed to establish her case on the ground of cruelty as her

pleas are not only vague but are also not backed by any

supporting or corroborative evidence.

8. Cruelty has not been defined in the Hindu

Marriage Act and rightly so as the concept of cruelty is of

wide amplitude and cannot be put into a strait jacket formula.

The conscience of the court should be satisfied that the

relationship of the parties has deteriorated to such an extent

that it has become impossible for the two to live together

without mental pain, torture and agony. In the case at hand

the level of cruelty alleged has not touched the pitch of

severity that would satisfy the requirements of Section

13(1)(ia) to seek dissolution of marriage. The Apex Court in

various judicial pronouncements has held that for seeking a

decree of divorce on the ground of cruelty, the petitioner

approaching the court has to make out a strong case for

seeking the said relief. It is also not the normal wear and tear

of domestic life which should entitle the petitioner for the

grant of decree of divorce. It would be pertinent to refer to

the judgment of the Apex Court in the case of Gurbux Singh

vs. Harminder Singh MANU/SC/0829/2010 where while

referring to the judgment in the case of Samar Ghosh vs.

Jaya Ghosh (2007) 4 SCC 511 where instances of cruelty

have been detailed, held as under:

"The married life should be assessed as a whole and a few isolated instances over certain period will not amount to cruelty. The ill-conduct must be precedent for a fairly lengthy period where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, one party finds it extremely difficult to live with the other party no longer may amount to mental cruelty. Making certain statements on the spur of the moment and expressing certain displeasure about the behaviour of elders may not be characterized as cruelty. Mere trivial irritations, quarrels, normal wear and tear of married life which happens in day to day life in all families would not be adequate for grant of divorce on the ground of cruelty."

In the light of the foregoing, it is clear in the face of the

circumstances of the case at hand that the conduct

complained of by the appellant does not constitute cruelty for

the grant of decree of divorce.

9. Hence, in the light of the aforesaid position, this

Court does not find any merit in the present appeal and the

same is hereby dismissed.

December 08, 2010           KAILASH GAMBHIR, J
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