Delhi High Court
Sneh Lata vs Ashok Kumar Dhull on 12 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12th November, 2014
+ MAT. APP. No. 97/2007
SNEH LATA ..... Appellant
Through: Mr. R.P.Sharma & Mr. Shivendu
Kaushik, Advocates
versus
ASHOK KUMAR DHULL ..... Respondent
Through: Mr. Pankaj Vivek, Ms. Anupriya
Singh & Mr. Atul Tripathi,
Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Appellant is the wife, who assails impugned judgment of 7th
September, 2007 vide which respondent-husband has been granted
divorce on the ground of cruelty and desertion.
The factual matrix of this case has already been spelt out in the
opening paragraph of the impugned judgment and needs no reiteration.
Suffice it would be to note that parties were married on 8 th June, 1980 in
Delhi and of the three children born out of this wedlock, unfortunately
one son expired on 4th June, 2000, thus, the parties presently have one
living daughter and one son. Appellant is a primary teacher in MCD and
respondent is also a teacher. According to respondent, the appellant used
MAT. APP. No. 97/2007 Page 1
to leave the matrimonial house to an undisclosed destination and return
after 10-15 days. The secret visits were virtually quarterly and there used
to be frequent quarrels between the parties. At trial, respondent had
deposed as PW-1 and his mother-Mahima Devi deposed as PW-2 to
substantiate the allegations of cruelty meted out by appellant to
respondent. To corroborate his version, respondent had got examined a
mason-Vijay Kumar (PW-5) and two police officials (PW-3 & PW-4) to
prove that respondent had made a criminal complaint but it was registered
as a kalandara under Section 107 of Cr.P.C. which was ultimately
compromised. According to respondent, he has been forced to live away
from appellant in a room on the first floor whereas the rest of the family
lived on the ground floor and appellant had refused to cook meals for
respondent and for two years prior to filing of the divorce respondent had
been taking his meals from one Janak Dhaba. It is also the case of the
respondent that he was assaulted by appellant and children on 3 rd July,
2003 and since July, 2001 appellant has refused to cohabit with the
respondent. On the contrary, stand of appellant herein before the trial
court was of denial and it was asserted by appellant that she had given
`20,000/- on 19th September, 2003 and she was living with respondent
like a good wife and sought dismissal of the petition for divorce. Divorce
proceedings concluded with the passing of the impugned judgment. The
findings returned in the impugned judgment are as under:-
"The petitioner has been able to establish that
respondent ignored her responsibilities by staying
away from the matrimonial home without intimating
the petitioner and the respondent declared her desire
to desert the petitioner. The conduct of the
MAT. APP. No. 97/2007 Page 2
respondent in taking away the articles from the joint
locker and then asking the petitioner to remain
separate, clearly indicate that she deserted the
petitioner with a view to end the relationship of
husband and wife. The incidents whereby the
petitioner was insulted and beaten up have also been
established. No effective cross examination of the
petitioner was conducted so as to dispute the
testimony of the petitioner. It is also not disputed in
evidence by the respondent that petitioner was forced
to leave the matrimonial home ultimately in February,
2004 although the parties were already living
separately from July 2001. All this caused mental and
physical cruelty to the petitioner as well as the
conduct of the respondent amounts to desertion on her
part."
At the final hearing of this petition, it was vehemently contended
by learned counsel for appellant the evidence given by respondent is
beyond pleadings and trial court has erred in relying upon the evidence of
the respondent to grant the decree of divorce. It was also urged by
appellant's counsel that the parties had gone together to Trade Fair on
26th November, 2004 and they had attended the marriages of the relatives
together in the year 2004. Reliance was placed by appellant's counsel
upon decisions in Naveen Kohli v. Neelu Kohli AIR 2006 SC 1675,
Savitri Pandey v. Prem Chandra Pandey I (2002) DMC 177 (SC),
J.L.Nanda v. Smt. Veena Nanda AIR 1988 SC 407, P.Malleswaramma v.
P.Prathap Reddy AIR 2006 Andhra Pradesh 4, Kulwant Singh v. Dalbir
Kaur II (2005) DMC 353-P&H High Court, Jagat Singh v. Sarojini Devi
I (2002) DMC 6450 P&H High Court and Smt. Maya v. Brij Nath AIR
MAT. APP. No. 97/2007 Page 3
1982 Delhi 240.
Learned counsel for respondent submits that there is nothing to
show that evidence led by respondent is beyond the pleadings and there is
no effective cross examination of respondent. Respondent's counsel
points out that the averments regarding the visit of both the sides to Trade
Fair and their attending marriage parties of relatives is not pleaded in the
written statement by the appellant. Lastly, it is submitted that decisions
relied upon by appellant are distinguishable on facts and there is no merit
in this appeal.
After having heard learned counsel of the parties and perusal of the
impugned judgment and evidence on record and the decisions cited, I find
that ordinary wear and tear of married life cannot amount to cruel conduct
and the cruelty inflicted must be of grave nature. It is equally true that a
non-resumption of cohabitation will be a ground for divorce and if parties
have lived together even after filing of the divorce petition then this
aspect has to be kept in mind. However, it is cardinal principle of
appreciation of evidence that no amount of evidence can be looked into
on a plea which is beyond the pleadings. However, the legal proposition
as enunciated in the relied upon decisions has no application to the facts
of the instant case as respondent's deposition alleging cruelty is not
effectively refuted in the cross examination of respondent. It has come in
evidence that appellant herein used to abuse respondent and used to tell
him about her relations with Mahender and Virender and used to ridicule
respondent in presence of the children, which caused immense
embarrassment and mental torture to respondent.
Appellant's assertion of going to Trade Fair in November, 2004
MAT. APP. No. 97/2007 Page 4
alongwith respondent and of their attending marriages of relatives has not
been put to respondent in cross examination nor there is assertion of these
facts in pleadings of appellant. Therefore, appellant cannot be heard and
say that she is having cordial relations with respondent, who is admittedly
living away from appellant. Infact, the evidence of appellant cannot be
looked into, in absence of pleadings and since there is no effective cross
examination of respondent regarding the allegations of cruelty and
desertion, therefore, in the considered opinion of this Court impugned
judgment granting divorce suffers from no illegality or infirmity.
This court is of the considered view that there is no substance in
this appeal. Resultantly, impugned judgment is maintained and this
appeal is dismissed.
(SUNIL GAUR)
JUDGE
NOVEMBER 12, 2014
vn
MAT. APP. No. 97/2007 Page 5
