Sandhya Pandey vs Kunj Bihar Pandey
2014 Latest Caselaw 2816 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Date of Decision:30.05.2014

+       MAT.APP. 60/2012, CM APPL. 18340/2012
        SANDHYA PANDEY                       ..... Appellant
                       Through: Mr. S.K. Chaturvedi, Adv.
                       versus
        KUNJ BIHAR PANDEY                    ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE NAJMI WAZIRI

1. This petition impugns an order dated 21.07.2011 which

dismissed the petitioner's petition seeking grant of a decree of divorce

under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act,

1955.

2. The facts are that the petitioner had married the respondent on

06.05.1990 at Chhapra, Bihar. The petitioner started living along with

respondent as husband and wife in her matrimonial home. Two

children namely Abhilasha and Master Abhinav were born to them.

Petitioner came into her matrimonial home along with gifts and

jewellery. However, after marriage unreasonable demands towards

money as well as jewellery etc. continued to be made by the

respondent and his family members. Since the petitioner's parents

were not in a position to meet the said demands of money and

jewellery, she was repeatedly beaten up by the respondent while the

rest of his family members were extremely inimical and cruel towards

her. However, an amount of Rs.50,000/- was paid to the respondent

by the petitioner's family by taking the same on loan from their

relatives. It is stated that despite the payment of the said amount of

Rs.50,000/- the behaviour of the respondent and his family members

did not improve towards her, rather they became more cruel towards

her thereby resulting in torture and abuse of the petitioner in her

matrimonial home and she was forced to do the entire household

works like a domestic servant there. She alleged that she was thrown

out of her matrimonial home on 30.06.2007 along with her two

children. On that day all that they had with them were the clothes on

their bodies. She sought refuge in one of her relatives' family namely

Ashok Singh at D-99, Yadav Nagar, Samaipur Badli, Delhi.

Thereafter, on 26.08.2007 when she went to her matrimonial home

along with her minor daughter to take her minor daughter's bicycle

and books etc. the respondent beat her and her minor daughter. The

police was then called and thereafter she was medically examined at

trauma centre, Delhi. During investigation she came to know through

her neighbours that the respondent has been trying to sell her

matrimonial home A-14/6, Bawa Colony, Burari, Delhi-84 through

Power of Attorney, sale deed etc. She claims that with the intervention

of the local police as well as respectable members of the society, she

was re-inducted in the matrimonial home on 08.09.2007 when the

respondent and his family members also promised not to harass her in

future. She claims that she is residing at the said address with her

minor children ever since. She also stated that certain blank

documents were made to be signed by her unknowingly by the

respondent and his family members. That thereafter, the respondent

and his family members continued to extend threat to her and her

children to dispossess them from the matrimonial home of the

petitioner as a result whereof she had filed a suit seeking permanent

injunction against the respondent for restraining him from

dispossession of the matrimonial home. An interim injunction was

granted in her favour on 14.01.2008. The petitioner contends that

since 05.10.2008, the respondent has left the company of the petitioner

and is residing at his native place at Chhapra, Bihar; whereas the

petitioner has been living alone since then without any monetary

support or help from her husband to meet her personal expenses and

for upbringing of their children. It was stated that the petition was not

filed in collusion with the respondent and she had not condoned the

acts cruelty committed by the respondent; there was no delay in filing

the petition. She stated that there was no reason why the relief sought

by her could not be granted.

3. Although notice of the petitioner was issued to the respondent,

but he could not be served through ordinary process but was served by

substituted service through publication in Rastriya Sahara, Bihar

Edition dated 16.04.2011. Due to default in appearance despite service

through publication, the respondent was proceeded ex parte on

02.05.2011. The petitioner recorded her statement in ex parte

evidence. However, there was no cross-examination. She reiterated

her suffering of cruelty in evidence.

4. The Court reasoned that there was no ground to disbelieve her

testimony more so when she was not cross-examined on particular

points which amounted to admission on the part of the opposite party.

The Court found no ostensible reason to disbelieve the allegations of

the petitioner. However, it went on to discuss the legal definition of

cruelty with respect to the Black's Law Dictionary as well as concept

contained in Shoba Rani vs. Madhukar Reddi (1998) 1 SCC 105;

Naveen Kohli vs. Neelu Kohli 1 (2006) DHC 489 (SC); Savitri

Pandey vs. Prem Chandra Pandey, MANU/SC/0010/2002; Vinita

Saxena vs. Pankaj Pandit, III (2006) SLT and Samar Ghose vs.

Jaya Ghose IV (2007) SLT 76 to conclude that "no comprehensive

definition of concept of 'mental cruelty' can be given nor can any

straitjacket formula or fixed parameters for determining mental

cruelty in matrimonial matters can be laid down."

5. The Court also borne in mind that for the purpose of Hindu

Marriage Act "cruelty" would include subjection of one's spouse at

the hands of the other and manifestation of such feelings towards her;

infliction of bodily injury upon the other or leading to apprehension of

bodily injury, suffering or the actual injury to health. The cruelty

would include both physical as well as mental cruelty. The latter

would include the conduct of one's spouse as to lead the mental

suffering or fear to the matrimonial life to other. All that is required is

reasonable apprehension that it would be harmful or injurious to the

apprehensive party to live with the spouse. However, cruelty has to be

distinguished from ordinary wear and tear of the family life. The Trial

Court reasoned that since there were no specific dates as to when the

cruelty occurred; the evidence of any other person was not furnished

in support of the case; despite her having lived in her matrimonial

home for 17 years i.e. from 06.05.1990 to 30.06.2007, she never

complained against the cruelty inflicted upon her or harassment for

dowry before the Crime Against Women Cell, the Court thus

concluded that:

"from the year 1990 till 2007, 17 years had elapsed, but it is not

possible, that the kind of cruelty alleged, if afflicted upon the

petitioner, would not have brought about any complaint from the

petitioner to any authority and therefore, inference is adverse to the

petitioner."

6. The Court reasoned that since no witness was examined by the

petitioner to corroborate her evidence; nor was the medical

examination at trauma centre on 26.08.2007 brought forth; nor any

medical slip was produced to fortify her stand regarding the beatings;

nor was there any document of her having been ousted from

matrimonial home along with children on 26.08.2007 proven by

leading evidence of any respectable member of the society, the Court

concluded that she failed to prove her case. The Court then proceeded

to examine the issue of desertion and referred to Bipin Chandra vs.

Prabhawati AIR 1957 SC 176 where the Hon'ble Supreme Court has

held: "desertion means the intentional permanent forsaking and

abandonment of one spouse by other without the other's consent and

without reasonable cause. It is a total repudiation of the obligation of

marriage."

7. The Court reasoned that the allegation of desertion was vague

and does not satisfy the requirement of 'cruelty' or mental "desertion"

of the petitioner. The Court reasoned that for the 'desertion' to have

been established, the Court must see the wilful conduct and neglect of

the respondent. It was to be proved that respondent's attitude was such

which was reflective of the fact that he had mentally forsaken the

petitioner and that he was not interested in the continuation of the

marital ties. The Court did not find merit the petitioner's contention

that her husband was trying to dispose off the matrimonial house. The

Court reasoned that such contention does neither inspire any

confidence nor does is it point towards the respondent forsaking to the

petitioner by act or conduct. Accordingly, the Trial Court dismissed

the petition on the petitioner's failure to prove all contentions made in

the petition.

8. This appeal was first listed before this Court on 13.10.2012

when notices were issued. However, the respondent was not found at

the given address and consequently, he was served on 14.04.2013 by

way of substituted service of publication in Rastriya Sahara, Hindu

Edition, District Chhapra, Bihar. However, before this Court too there

was default in appearance. Accordingly, on September 03, 2013, this

Court proceeded ex parte against the respondent.

9. Counsel for the petitioner submits that the impugned order

suffers from non-application of judicial mind. Respondent having

deserted the petitioner on 05.02.2008; having inflicted and having

beaten the petitioner repeatedly on various occasions and not having

paid her any maintenance; having withdrawn from society and having

not made any provision for maintenance of her and their children

consequently, there was no legal impediment why the relief prayed

could not have been granted. He submits that the Trial Court order

suffers from material illegality by dismissing the petition which

otherwise had sufficient ground for grant of divorce.

10. From the judgments referred to in the impugned judgment by

the Trial Court, this Court is of the view that where the respondent

husband, in spite of due service of notice, did not appear before the

Trial Court to contest the divorce petition and again before this Court

to contest the appeal, he would really have no case against the

averments made in the petition and evidence led by the petitioner

herself. It cannot be said that for the reasons best known to her

perhaps due to social circumstances and family values, economic need

someone can endure for any duration the cruelty both physical as well

as mental.

11. In the circumstances, the allegations made by the petitioner that

the husband was habitually cruel towards her; her in-laws were active

participants in meting out the cruelty towards her as well as making

unreasonable demands of money and beating the petitioner in the

presence of their children. The husband had not provided her any help

when he left matrimonial home on 05.02.2008 till the filing of the

petition for divorce in March, 2010 cannot be disbelieved simply

because the complaint was not made to CAW cell or to any other

statutory authority/police against demand of money and dowry or

against harassment or infliction or mental or physical cruelties. The

petitioner has mentioned instances wherein the conduct of the

respondent can be classified as cruelty. The Supreme Court in A.

Jayachandra v. Aneel Kaur AIR 2005 SC 534 explained what would

amount to cruelty and the situation in which certain acts could be

defined as acts of cruelty. The Supreme Court held;

"10. The expression "cruelty" has not been defined in the Act. Cruelty

can be physical or mental. Cruelty which is a ground for dissolution of

marriage may be defined as willful and unjustifiable conduct of such

character as to cause danger to life, limb or health, bodily or mental,

or as to give rise to a reasonable apprehension of such a danger. The

question of mental cruelty has to be considered in the light of the

norms of marital ties of the particular society to which the parties

belong, their social values, status, environment in which they live.

Cruelty, as noted above, includes mental cruelty, which falls within

the purview of a matrimonial wrong. Cruelty need not be physical. If

from the conduct of his spouse same is established and/or an inference

can be legitimately drawn that the treatment of the spouse is such that

it causes an apprehension in the mind of the other spouse, about his or

her mental welfare then this conduct amounts to cruelty. In delicate

human relationship like matrimony, one has to see the probabilities of

the case. The concept, a proof beyond the shadow of doubt, is to be

applied to criminal trials and not to civil matters and certainly not to

matters of such delicate personal relationship as those of husband and

wife. Therefore, one has to see what are the probabilities in a case

and legal cruelty has to be found out, not merely as a matter of fact,

but as the effect on the mind of the complainant spouse because of the

acts or omissions of the other. Cruelty may be physical or corporeal

or may be mental. In physical cruelty, there can be tangible and direct

evidence, but in the case of mental cruelty there may not at the same

time be direct evidence. In cases where there is no direct evidence,

Courts are required to probe into the mental process and mental effect

of incidents that are brought out in evidence. It is in this view that one

has to consider the evidence in matrimonial disputes."

Applying the reasoning the Court in the abovementioned case, it

would be unjust to the petitioner to rule out the probabilities of cruelty

against the petitioner as the respondent, despite due process of

summons, failed to appear in Court to controvert the allegations. It

cannot be said that the allegations per se were not possible. Such

complaint is not sine qua non. Circumstantial evidence can be

corroborative evidence. In the present case, although there was no

corroborative evidence but in the absence of any cross examination by

the respondent-husband who had proceeded ex parte, there was no

reason to doubt the veracity of the petitioner-wife's contentions. She

had given specific instance as to when she was beaten i.e. on

26.08.2007 as well as the fact that she was medically examined at the

trauma centre and further that after intervention of the respectable of

the society she was re-inducted in the matrimonial home. Therefore,

her contention that there was demand of dowry, harassment, physical

abuse which included severe beatings on 26.08.207 leading to her

medical treatment at trauma centre, Delhi and being thrown out of her

matrimonial home along with her children on 30.06.2007 and

thereafter her re-induction into her matrimonial home on 08.09.2007

because of intervention of the respectable members of the society

amounted to cruelty which she had been suffering. Since there was no

rebuttal of her evidence, there could be no reason to disbelieve the

same. Each of the aforesaid instances would tantamount to cruelty.

Furthermore, the petitioner claimed that she was deserted on

05.02.2008 and she has been living separately from her husband who

had moved on to his native place; that the petition was filed after 2

years of statutory period in March 2010. There again, being no

controversy of this claim, there could be no reason to disbelieve her.

The act of cruelty also stands established. Accordingly, in view of the

aforesaid discussion, this Court is of the view that both the grounds of

cruelty as well as desertion stand established and the petitioner is

entitled to a decree of dissolution of marriage under Section 13(1)(i-a)

and 13(1) (i-b) of the Act. The Trial Court fell into error in seeking

corroboration of admittedly uncontroverted facts. In the

circumstances, the impugned order is set aside. The petition is

allowed and the marriage between the petitioner and the respondent is

hereby dissolved on the grounds of cruelty and desertion. A decree be

drawn accordingly.

NAJMI WAZIRI (JUDGE)

MAY 30, 2014/acm