Delhi High Court

Smt. Sunita Devi vs Shri Om Prakash on 20 October, 2010

Author: Kailash Gambhir

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                  MAT.APP. No. 95/2009
                         Judgment delivered on: 20.10.2010

Smt. Sunita Devi                             ..... Petitioner
                        Through: Ms. Sobha Gupta and
                            Mr. Mohd. Rafi, Advocate

                        Versus

Shri Om Prakash            ..... Respondent
                        Through: Ms. Sahila Lamba, Advocate


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,

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

2. To be referred to Reporter or not?              Yes

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

KAILASH GAMBHIR, J. Oral:
*

1. By this appeal filed under section 28 of the Hindu

Marriage Act,1955 the appellant seeks to challenge the order

and decree dated 31.10.2008 passed by the Ld. Court of

Additional District Judge, Delhi whereby the divorce petition

filed by the appellant under section 13 (ia)&(ib) of the Hindu

Marriage Act, 1955 was dismissed.

2. Brief facts of the case as set out in the present appeal

are that the marriage between the parties was solemnized on

27.06.1988 at Village Jatola, Tehsil Kharkhauda, District

Sonepat, Haryana according to Hindu Rites and Ceremonies.

That after the marriage parties started living together at the

house of respondent at WZ-161, Shadipur, Mandir Wali Gali,

New Delhi. The marriage was duly consummated and out of

the said wedlock two daughters and a son were born. The

petition under Section 13(1) (ia) & (ib) of the Hindu Marriage

Act was filed by the appellant wife against the respondent

husband seeking divorce on the alleged ground of cruelty and

desertion. One of the main allegations leveled by the

appellant in the divorce petition was that the respondent was

having illicit relationship with a lady named Geeta and it is on

account of this illicit relationship the husband used to abuse

and beat her mercilessly in the presence of Geeta. It is also

because of that illicit relationship that the respondent had

deserted the appellant in 2001. The appellant has alleged that

due to addiction to liquor and gambling the appellant is

involved in criminal activities. The other allegation mainly

leveled by the appellant in the petition against the respondent

is that he had killed his illegitimate daughter of 1-1/2 years

born out of his illicit relationship with Geeta and an FIR No.

348/04 u/s 302 IPC was registered on 25.11.2004 against him

and since 2004 the respondent is in judicial custody. The

appellant further alleges that the after the passing of the said

impugned judgment and decree the respondent has been

convicted in the said case u/s 302 IPC for committing murder

of his illegitimate daughter and has been sentenced to life

imprisonment. The appellant has also stated that the acts of

cruelty have not been condoned by the appellant. The

appellant in support of her case before the trial court

examined herself as PW- 1 and sister-in-law of the respondent

who is the sister of the appellant as PW- 2. The respondent on

the other hand examined himself as RW 1 and his sister as RW

2 to prove his case. Vide the impugned judgment and decree

dated 31.10.2008 the ld. Addl. District Judge has dismissed the

said petition filed by the appellant on the ground that the

allegations of cruelty and desertion leveled by the appellant in

her petition were not proved by her. Feeling aggrieved with

the same, the appellant has preferred the present appeal.

3. I have heard learned counsel for the parties and

gone through the records.

4. It is not in dispute between the parties that the

respondent now stands convicted for the heinous crime of

committing brutal murder of his illegitimate daughter who was

aged about 1-1/2 years. It is also not in dispute that he has

been sentenced to life imprisonment for committing the said

offence. Without going into the merits of the other allegations

leveled by the appellant in the trial court, this court is of the

considered view that the said murder of the small child of 1-

1/2 years sufficiently proves that the respondent was having

illicit relationship with the said lady named Geeta. The

appellant in her petition clearly stated that the respondent

was having illicit relationship with the said lady Geeta and due

to the said relationship the respondent used to illtreat the

petitioner. It is also proved that due to this relationship the

appellant used to mercilessly beat the appellant and thus

failed to discharge his obligations as husband as well as father

of the children. It would be relevant to refer to the following

paras of the criminal case No.18/2008, decided by the Addl.

Sessions Judge. The same are reproduced as under:-

1. "On 25.11.2004, one Bulbul, a small girl, 16 months of age was brutally done to death by throwing her against a wall. The prosecution alleges that this gruesome act was committed by her father, the accused Om Prakash.

.............

9. Prosecution has examined sixteen witnesses in all to prove its case against the accused. The material ocular evidence in the case is the deposition of PW- 7 Bittoo who is stated to be an eye witness of the whole incident. He has recounted the incident and has stated that the accused came on 25.11.2004 at about 11.15 a.m. with one Pardeep. During the course of his quarrel with Geeta, when Geeta insisted on living with him (the witness), the accused Om Prakash stated that he will finish her daughter. He picked up a broken quarter bottle and hit on the back of the daughter Bulbul due to which she started crying. Thereafter the accused Om Prakash picked up Bulbul and threw her against a wall. The witness has also stated that he provided first aid to Bulbul and wiped the blood from her would as well as from the floor. He has also stated that at about 4.30 p.m. the condition of the child deteriorated. Her mother Geeta left the house to arrange for the money for her treatment and the child was in his lap when the police arrived. ...............

13. PW- 1 Dr. L.K. Barua of DDU Hospital, Delhi had conducted the postmortem on the dead body of the deceased Bulbul. He has proved his report Ex. PW- 1/A. He also proved his opinion that scratches on the body of the deceased could have been caused by broken glass pieces as Ex. PW- 1/B. Ex. PW- 1/C is his opinion that the injuries suffered by the deceased on her head could have been caused by striking her head against the wall and the said injury was sufficient in the ordinary course of nature of cause death.

................

23. Accordingly, I find no reason to disbelieve the testimony of PW 7 Bittoo and, therefore, it stands proved that on the relevant date and time, the accused Om Parkash first hit the deceased Bulbul with a broken glass bottle on her back and then struck her head against the wall. PW- 1 Dr. L.K. Baruah has recorded following injuries in his post mortem report:-

(i)Multiple vertically placed scratches present on the back side of the body, out of them 12 number could be counted. The individual length of the scratches varies from 9 to 16 cm in length and 0.1 to 0/2 cm in width. This injury was skin to muscle deep.

(ii ) Constitution over left side of forehead, size 4 x 3 cm placed 0.5 cm above the left eye brow and reddish in colour.

(iii) Defused contused area on the right side of forehead extending from mid line to tragus of the right ear and from above eye lid to frontall hair line.

(iv) Contusion over left occipital parital area and 5 cm above the left ear, size 2.5 x 1.5 c.m.

...................

26. No particular defence has been put up by the accused in his statement under Section 313 Cr.P.C. except a bare denial of all the evidence which was put to him for explanation. By producing the case file of a divorce case between him and one Sunita Devi, the accused seeks to contend that deceased Geeta was not his wife. However, there is no denial of the fact that Geeta was the mother of the deceased and he was the father. The Investigating Officer has also proved a noting dated 07.12.2004 from the Medical Record Officer of Lady Harding College to the effect that on 18.09.2003, a female child was born to Smt. Geeta wife of Om Parkash at that hospital. In these circumstances, even if Geeta was not legally wedded wife of the accused or if the accused had another wife also, it stands proved that

the child Bulbul was daughter of Geeta and the accused, the same would have no effect on the case."

(emphasis supplied)

5. Although the respondent husband is stated to have

challenged the said order of conviction in appeal but certainly

now with the conviction of the respondent, the findings are

clearly against the respondent and it stands proved that he

was involved in the brutal murder of his 1-1/2 years old

illegitimate child. There is no need to go into the other

allegations of cruelty leveled by the appellant as the said

observations clearly prove the existence of the illicit

relationship of the husband with the lady named Geeta. It is

not only that the respondent was having the said illicit

relationship with lady Geeta but out of the said relationship a

female child was born to Geeta. On perusal of the said

judgment of the criminal court it is manifest that the

Investigating Officer has proved on record that the birth of the

said child was out of the relationship of the respondent with

Geeta and she gave birth to the child at the Lady Harding

College on 18.09.2003. It is thus quite apparent that the

respondent was maintaining an illicit relationship with the

said lady during the subsistence of his first marriage with the

present appellant. A bare perusal of the chargesheet as borne

out from the judgment of the criminal court placed on record,

it is manifest that the respondent brutally murdered the said

small child by striking her head against the wall and then

throwing her on the ground. The said conduct of the

respondent is quite barbaric besides being inhuman. It also

stands proved that the respondent was having illicit

relationship with the said lady Geeta and this act by itself

constitutes a grave act of cruelty on his part and this act gets

further compounded when he had murdered the small child

born out of his illegitimate relationship.

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

makes cruelty as a ground for divorce. The term 'cruelty'

however has not been defined in the Act. The Court has to rest

its decision on the facts and circumstances of each case on

assessment of human nature and human affairs with due

regard to social conditions and customs of the parties. Here it

would be useful to the judgment of the Apex court in the case

of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105

wherein it was held that:

Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted."

7. In the present case, the respondent husband had an

illicit relationship with one lady named Gita. The fact that the

husband of the appellant is having a relationship with some

other woman is undoubtedly a cause of mental agony and

stress for the wife. The Kolkata High Court in the case of Smt.

Barnali Sen vs. Debashish Sen (2002) DMC 579 (DB)

held that a case of mental cruelty is made out on behalf of the

spouse who appears to have been compelled to file the suit for

divorce after a series of incidents where the marital fidelity of

the other spouse comes to be questioned and the marital ties

comes under severe strain. The Court held that such

circumstances were sufficient to establish mental cruelty

suffered by the spouse on account of the actions of the erring

spouse. The judgment of the Madhya Pradesh High Court in

the case of Smt. Vimal Ladkani vs. Dr. Chandra Prakash

Ladkani (1996) DMC 142 is to the same effect. In the case

at hand, the appellant has sought the decree of divorce on the

ground of cruelty. The learned Trial Court decided the issue

No. 1 that 'whether the petitioner has been treated with

cruelty by the respondent after solemnization of marriage?'

against the appellant due to the absence of proof of the illicit

relationship of the respondent. The learned trial court

observed that the ground of divorce pleaded is not adultery

but cruelty which could not be sufficiently proved. Although

the conviction of the respondent for murdering his illegitimate

child is a subsequent development but the same can be taken

into consideration at the stage of appeal. The existence of an

illicit relationship between the respondent and the said lady

Geeta is sufficient to establish cruelty as envisaged under

section 13(1)(ia) of the Act. The question that the trial court

needed to ask was that whether the mental anguish caused to

the appellant by the fact of the illicit relationship of the

respondent was enough to constitute an act of cruelty on the

part of the respondent husband. This court is of the

considered view that the answer would be in the affirmative.

8. Human emotions do not run on dotted lines. Every

person has a different level of tolerance and sensitivity and

certain allegations of cruelty leveled by one spouse may cause

mental cruelty to his/her spouse and the same very allegations

in some other case may not be considered of that magnitude to

cause cruelty of such nature. Each case is dependent upon

various factors; social, economic, family background,

upbringing, education, etc. However one thing which can be

considered universal in all situations is that no spouse can

tolerate his/her spouse having illicit relations or extra marital

relations. It would be useful to refer to the judgment of the

Apex Court in the case of Naveen Kohli vs. Neelu Kohli AIR

2006 SCC 1675 here where it was held that:

"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 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.

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."

9. In the present case, from the facts on the record it

is clearly borne out that the respondent has caused mental

pain of such a magnitude that it has severed the bond between

the wife and husband and as a result of which it has become

impossible for the appellant wife who has suffered to live with

the other party. Thus the requirement of section 13(1)(ia)

stands fulfilled. Therefore if a spouse is found living or having

any kind of illicit relationship with any other person then such

an act in itself is sufficient to prove cruelty on the part of such

spouse. Although the passing of the judgment of conviction is

a subsequent development but since an appeal is a

continuation of the original petition therefore the same can be