Smt. Nitu Aggarwal vs Sh Gireesh Gupta
2010 Latest Caselaw 5256 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI


                      MAT APP No. 98/2010


                       Judgment delivered on: 19.11.2010

Smt. Nitu Aggarwal                           ..... Appellant

                          Through: Mr.Rajiv Shukla, Adv.

                          Versus

Sh.Gireesh Gupta                            ..... Respondent
                          Through: Mr.Gyan Prakash, Adv.


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 28 of the

Hindu Marriage Act, 1955 the appellant seeks to challenge

the judgment and decree dated 27.4.2010, passed by the

learned Additional District Judge, Delhi, whereby a decree

of judicial separation was passed.

2. Brief facts of the case relevant for deciding the

present appeal are that the parties got married on 5.11.03

at Noida according to Hindu rites and ceremonies and a

female child was born out of wedlock on 14.9.04. The

matrimonial relations between the parties were stained

right from the very beginning of their married life and

distressed by the behaviour of the appellant, the respondent

filed a petition under section 10 of the Hindu Marriage Act,

1955 for a decree of judicial separation on the ground of

cruelty which vide judgment dated 27.4.10 was granted.

Feeling aggrieved with the same, the appellant has filed the

present appeal.

3. Mr. Rajiv Shukla, counsel for the appellant

submits that the learned trial court has wrongly assumed

that the appellant had consumed some poisonous substance

with a view to commit suicide. The contention of the

counsel for the appellant is that the respondent used to

compel and force the appellant to consume certain

medicines under the pretext that the same were good for

her health and for the child in the womb. Counsel further

submits that the respondent also failed to prove on record

that an attempt of suicide by the appellant was made with

a view to coerce the respondent to accede to any of her

demands and in the absence of any such assertion on the

part of the respondent, no logic or rationale behind the

alleged attempt of suicide by the appellant could be

established by the respondent. Explaining the contradiction

on the part of the appellant in the FIR lodged by her under

Section 498A/406/34 IPC, counsel submits that even if the

appellant in the said FIR took a stand that the respondent

had given her something to drink, the same will not make

any difference vis-à-vis her stand in the matrimonial

proceedings where she had stated that the respondent used

to administer some medicines. Counsel thus submits that

there was a minor variation in the stand of the appellant

which would not amount to any kind of self contradiction on

her part. Counsel thus states that there is clear infirmity and

perversity in the findings of the learned trial court on this

aspect and the same should be set aside.

4. Assailing the impugned judgment on another

ground, counsel submits that the learned trial court has

wrongly observed that the implication of the relatives of the

respondent is in itself an act of cruelty against the

respondent. The contention of the counsel for the appellant

is that the mere fact that the said relatives were not charge

sheeted by the police would not show that the allegations

leveled by the appellant against the relatives of the

respondent were false. The contention of the counsel is

that at the stage of framing of charges, it would be for the

concerned Criminal Court to see whether based on the

allegations leveled by the appellant in her criminal

complaint such relatives are required to be proceeded

against or not.

5. Counsel for the respondent on the other hand

refutes the submissions made by the counsel for the

appellant and submits that the present appeal deserves to

be dismissed at the admission stage itself as the appellant

has failed to point out any material illegality or perversity in

the order passed by the learned trial court.

6. I have heard learned counsel for the parties.

7. The petition under Section 10 of the Hindu

Marriage Act was preferred by the respondent husband so

as to seek a decree of judicial separation from the appellant

on the ground of cruelty. The marriage between the parties

was solemnized according to Hindu rites and ceremonies on

5.11.2003 and both the parties are well educated

academically. One of the allegations leveled by the

respondent against the appellant is that the appellant had

consumed some poisonous drink on 18.8.2004 and her

condition became very critical in the morning of 18.8.2004

and she was immediately taken to Kailash Hospital, Noida

and it is only on account of the timely action taken by the

respondent and his parents that life of the appellant and

the unborn child could be saved. It is an admitted case of

the parties that subsequent to the filing of the said petition

by the respondent husband the appellant wife got

registered one criminal complaint under Section

498A/406/34 IPC vide FIR No. 498/2005 not only against

the respondent but his parents and some other relatives as

well. Some of the relatives implicated by the appellant in the

said complaint case were the residents of far off places like

Saharanpur and Baroda. It is also an admitted case of the

parties that the relatives of the respondent were not charge-

sheeted by the police as no incriminating material was

found against them during the course of investigation. The

respondent has taken this false implication of his relatives

on the part of the appellant as a ground of cruelty. Learned

trial court has also granted decree of judicial separation in

favour of the respondent and against the appellant taking

the said two grounds clearly establishing the cruel conduct

of the appellant towards the respondent. Before the learned

trial court as well as before this court the appellant has

failed to disclose as to what kind of medicines were being

administered by the respondent to her during the stage of

pregnancy on the pretext of the same being good for her

health and that of the unborn child. It is incomprehensible

to accept the argument that the appellant who is a well

qualified lady having a degree of Chartered Accountancy

and Company Secretary would take the medicines without

even knowing what kind of medicines she was taking. The

appellant has also clearly taken a contradictory stand in

her criminal complaint, wherein she stated that she was

given something to drink by the respondent and his parents

on the pretext that it is good for her pregnancy. The

appellant has also not denied the fact that she was admitted

to Kailash Hospital in the morning of 18.8.2004 where she

was treated after having consumed some poisonous

substance. It is also not in dispute that the appellant did not

lodge any police complaint against the respondent or his

parents complaining about administration of some

poisonous medicines by her husband or his parents. The

learned trial court has duly taken into consideration all

these circumstances into account and thus has arrived at a

finding that such an attempt by the appellant to commit

suicide is an act of cruelty on her part upon her husband.

8. The concept of cruelty is of wide amplitude and has not

been defined in the act. The Apex Court through various

judicial pronouncements has explained the concept and

scope of cruelty. It would be useful here to refer to the

judgment of the Apex Court in the case of A. Jayachandra

vs. Aneel Kaur AIR 2005 SC 534 where it was held as

under:

"12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."

Cruelty therefore is to be garnered taking the cumulative

effect of all the factors into play. The parties are well

educated and such an attempt to end her life by the

appellant would certainly cause mental agony to the

respondent. It would aggravate the case when the appellant

tried to commit suicide in the state of pregnancy. A highly

educated lady claiming that she was administered poisonous

substance which she was unaware of does not help her case.

No doubt in the petition the respondent did not give any

specific reason or cause behind such suicidal attempt but

it goes without saying that such an act even in the absence

of any reason certainly would constitute an act of cruelty on

the respondent husband.

9. Even on the second argument of the counsel for

the appellant, this court does not find any merit in it. The

complaint under Section 498A/406/34 IPC was lodged by the

appellant during the pendency of the said petition filed by

the respondent for judicial separation. In her complaint the

appellant roped in various relatives of the respondent which

include his uncle and aunt residing at Saharanpur and

brother and sister in law residing at Baroda. The learned

trial court is right in taking a view that false implication of

relatives who were residing at far off places from the

matrimonial home of the appellant and against whom there

are no specific allegations of cruelty in itself is an act of

cruelty by the appellant towards her husband. However, as

these relatives were not charge-sheeted by the police the

same would clearly show that the police did not find any

incriminating material against these relatives during the

investigation and this by itself is sufficient enough to show

that the appellant had roped in and implicated all these

relatives with vengeance to cause unnecessary harassment

to them and such act certainly would cause cruelty to the

husband with whom they are related. Implicating the

relatives with a motive to harass the relatives, residing in

different parts of the country, is nothing but a ruthless act of

harassment. Therefore, the respondent husband has

successfully proved cruelty on the part of the appellant on

both the counts.

10. In the light of the above, this court does not find

any infirmity or illegality in the findings arrived at by the

learned trial court. There is no merit in the present appeal

and the same is hereby dismissed at the stage of admission

itself.

November 19, 2010                        KAILASH GAMBHIR, J
mg