Smt. Abhilasha vs Sh. Devender Kumar
2015 Latest Caselaw 6004 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      MAT.APP.(F.C.) 106/2014 & CM No.15113/2014
       SMT. ABHILASHA                                        ..... Appellant
                    Through            Mr. Sri Bhagwan Sharma & Mr.
                                       Anshuman Pandey, Advocates
                                       alongwith appellant in person
                          versus

       SH. DEVENDER KUMAR                                 ...... Respondent
                    Through            Mr. Rajeev Kumar, Advocate for
                                       the respondent alongwith the
                                       respondent in person
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MR. JUSTICE P.S.TEJI
                    ORDER

       %            17.08.2015

KAILASH GAMBHIR, J. (ORAL)

1. By way of the present appeal, the appellant questions the tenability

of the order dated 16.05.2014 passed by the learned Judge, Family

Court, Dwarka, New Delhi (hereinafter referred to as the 'learned

Family Court') whereby the learned Family Court has passed a judgment

and decree in favour of the respondent and against the appellant under

Section 9 of the Hindu Marriage Act, 1955 (in short 'HMA').

2. In the ancient times, the basal thought was that marriage was a

prime necessity for that alone could enable a person to discharge properly

his religious and secular obligations. The earliest records show that rules

of inheritance depended on the rules of marriage and it was obligatory on

the father to give the daughter in marriage as gift is given. Marriage a

Sacrament: Marriage is necessarily the basis of social organization and

foundation of some important legal rights and obligations. The

importance and imperative character of the institution of marriage needs

no comment. In Hindu Law marriage is treated as a samskara or a

sacrament. It is the last of ten sacraments, enjoyed by the Hindu religion

for regeneration of men and obligatory in case of every Hindu who does

not desire to adopt the life of sanyaasi. From the very commencement of

Rig-Vedic age, marriage was a well established institution, and the Aryan

ideal of marriage was very high. The high value placed on marriage is

shown by the long and striking hymn of Rig-Veda, X, 85; "Be, thou,

mother of heroic children, devoted to the Gods, Be, thou, Queen in thy

father -in -law's household. May all the Gods unite the hearts of us two

into one".

As the old writers put it," a woman is half her husband and completes

him". Gone are the days when marriage was considered to be a sacrilege.

With the advent of time, these verses have lost its quintessence, rather in

the present times, it is debasing to hear of every second marriage being a

failure. In our considered view, the patience and sincerity that is required

to build and nourish a bond has reached its zenith. In times like these not

even two to three marriages sustain, let alone one. Similar are the facts of

the case at hand wherein it was a second marriage for both the spouses

and due to their ego tussles, they are hell bent on destroying the

sacramental union i.e. Marriage.

2. The brief facts of the case at hand are as follows:

That the petitioner got married to the respondent on 17.02.2002 according

to the Hindu customs and rights. This was the second marriage of both

the parties as the wife of the respondent herein had expired while the

petitioner was a divorcee. Both of them had a daughter each from their

previous marriage. It is alleged that after marriage, the respondent herein

took complete care of the daughter of the petitioner as her own daughter

and even got her admitted to SRS Mission School, Janakpuri alongwith

her own daughter. That he never made any distinction between the two

children and provided them with all the love and facilities of life. It is

alleged that the appellant had purchased a plot of land in Sita Puri

bearing No.A-120, Gali No.21, Dabri Sita Puri, New Delhi from the

funds generated by her and the respondent herein wanted it to be

transferred to his name. Thus, the relation between the petitioner and the

respondent turned sour and the respondent left the appellant herein with

all his belongings and also left his daughter, Asha Rani, with the

appellant. A case was filed by the appellant herein against her husband

under section 12 of the Protection of Women from Domestic Violence

Act, 2005 (in short 'DV Act') along with the application of Interim

maintenance. Subsequently, Mahila Court granted her Rs. 3000/- as

monthly interim maintenance, the same was set aside by the Ld. ASJ

Dwarka Court on 29.08.2011. The respondent herein filed a petition

under section 9 of the HMA to avoid the interim maintenance awarded by

the Ld. Judge, family Court. Ld. ASJ set aside the interim order of

maintenance and allowed the petition of the respondent filed under

section 9 of HMA. Hence the present petition.

3. Assailing the legality and correctness of the impugned order

passed by the learned Family Court, Mr. Sri Bhagwan Sharma, the

learned counsel for the appellant, contends that the appellant made all

possible efforts to save her marriage but the respondent tortured and

harassed her for not transferring the plot in his name. The contention

raised by the learned counsel for the appellant is that after marriage, the

appellant had purchased a plot of land in Sita Puri bearing No.A-120,

Gali No.21, Dabri Sita Puri, New Delhi from the funds generated by her,

taking no financial help from the respondent but the respondent had

always been insisting the appellant to transfer the said plot in his name

and when the appellant refused to do so, the respondent left the company

of the appellant on 26th May, 2008. The learned counsel further

submits that the learned Family Court failed to appreciate the fact that

the respondent has been earning more than Rs.50,000/- per month and

was duty bound to maintain the appellant and her daughter Bhawna but

chose to walk out of the house so as to save himself from the said

financial burden. The learned counsel also argued that the learned Family

Court also failed to appreciate the fact that it is the appellant who had

first approached the learned Trial Court for grant of maintenance had also

separately filed a Petition under Section 12 of the Domestic Violence

Act, 2005 and it is thereafter, that the respondent had filed a Petition

under Section 9 of the HMA to seek restitution of the conjugal rights.

Based on the above submissions, the learned counsel for the appellant

urges for setting aside the impugned judgment and decree.

5. On the other hand, the present appeal is strongly opposed by Mr.

Rajeev Kumar, the learned counsel for the respondent. The learned

counsel submits that the appellant has failed to point out any kind of

illegality or perversity in the reasoning given by the learned Trial Court in

passing the judgment and decree. The learned counsel for the respondent

prays for outright dismissal of the present appeal.

6. We have heard the learned counsel for both the parties and have

perused the material on record including the order dated 16.05.2014

which is under challenge.

7. In the instant case, we find that the appellant got married to the

respondent on 17.02.2002 according to the Hindu Rights and Customs.

Undoubtedly, it was a second marriage for both the parties and each of

them had a daughter from their previous marriage. After they started

residing together, both the daughters were admitted to the same school,

SRS Mission School and their fee was borne by the respondent herein

without any delay. It may further be noted that in the petition under

Section 9 of HMA was filed before the Family Court, the respondent had

alleged that because of the pressure of the appellant herein, he purchased

a plot bearing no. A- 120, Sita Puri in the appellant's name, near her

parental house on 29.06.2003, however on the contrary, the appellant

denying the allegation has stated that the said plot of land was not

purchased by the respondent but the appellant herein, with the help of her

parents. As per the documents proved on record, the respondent has

clearly shown the bifurcation of the amount so collected for purchasing

the aforesaid property and that too in the name of his wife, to which the

appellant herein has stayed silent in her testimony. Even the father of the

appellant did not step into the witness box to support this averment. Thus

the allegation that the appellant herein had spent the entire money to buy

the aforesaid plot with the help of his family is devoid of any substance.

Even when a suggestion was put to her, she became mum and chose not

to respond.

8. The Ld. Judge Family Court widely discussed the issue that

whether the respondent without any reasonable excuse has withdrawn

from the society of the appellant. The fact that the respondent has been

helpful in each and every way possible to sustain his relation with his

wife can in no way be doubted from the evidence on record. The petition

in fact is bereft of any act proving cruelty by the husband of the appellant

in specific so far as the allegation of harassment is levelled against the

respondent. It is an admitted case that the husband of the appellant on

27.05.2008 left the society of his wife alongwith all his belongings.

Nevertheless, until 2009, he even took care of the expenses of the

daughters in terms of their fee etc. Nowhere has the appellant been able to

prove that the husband/ respondent herein was rude or cruel in his

conduct towards his wife or daughters in any manner possible. Rather he

was ready to bear their school expenses, until the appellant herself

intimated the school authorities to not to charge the same from her

husband. But particularly for her daughter , Asha Rani, he took care of

the fee amount and later he even took the custody of his child from the

court.

9. Indisputably, a fight had taken place between the appellant and her

husband on 26.05.2008 but the appellant has no where denied that the

husband of the appellant still visited their house and was available as and

when required. On the other hand it appears that the appellant had kept

him at her beck and call and never tried to completely reconcile.

Therefore, the contention raised by the ld. Counsel for the appellant with

regard to the intention of the respondent to get rid of the financial burden

does not prove to be true . The ld. Judge, Family Court has rightly held on

the basis of the record available that the petitioner was prevented from

entering the house of the appellant since 02.10.2008. Therefore to say that

the respondent tried to get rid of the financial burden would not suffice in

the entire set of circumstances.

10. The dictum of law as laid down by this court in the case of Krishan

Kumar Vs. Shankari II (2007) DMC 367and Harish Chander Drall vs.

Suresh Wati II (2007) DMC 450 is that the mere fact that the criminal

proceedings have been instituted by one spouse against the other, the

same would not constitute cruelty by itself, even if such criminal

proceedings end up in acquittal.

11. It would also be pertinent to refer to the judgment of the Madras

High Court in the case of Jayakumari vs. Balachander 2010(TLS)

1243604 where it has been held that:

"30. The term 'cruelty' consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely destroying real purpose and object of matrimony. It would of course be difficult to define the expression "cruelty'. There cannot be any hard and fast rule in interpreting the same. As pointed out, the word "cruelty" cannot be put in a strait-jacket of judicial definition. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little, if any, value. The term 'cruelty' is not defined in the Act. It is to be judged by taking into consideration the status of life, the standard of living, the family background and the society in which the parties are accustomed to move because particular behaviour may amount to cruelty in one set of circumstances and may not be so in other set of circumstances.

Observing that merely because criminal proceedings under Sec.498A IPC initiated by wife against her husband and his parents ended in acquittal and it cannot be treated as an instance which goes infavour of the husband to substantiate the plea of cruelty, in AIR 2006 AP 269 [Chiranjeevi v. Lavanya], the Division Bench of Andhra Pradesh High Court held as follows:-

"22. Much arguments have been advanced by the learned counsel appearing for the appellant-husband and his parents that a criminal case on a full fledged trial is an incident which constitutes cruelty on the part of the respondent-wife who initiated criminal proceedings. We have gone through the judgment, which has been marked as Ex.B-6. The criminal case ended in acquittal on the ground that the prosecution failed to prove the case against the accused beyond all reasonable doubt. The acquittal of the case is not on the ground of no evidence. It is settled law that nature of evidence required in a criminal case is of different standards and the same standards and proof is not required in civil proceedings. Therefore, mere acquittal of the appellant- husband and his parents in criminal case cannot be treated as instance which goes in favour of the appellant-accused to substantiate the plea of cruelty, on which a decree of divorce has been sought for."

33. Similar view was taken in AIR 2007 (NOC) 2205 (Del.) [Vishnu Dutt Sharma v. Manju Sharma].

12. Apprehension with regard to harm or injury should also be of such

nature which may cause the other side irreparable loss or injury. Meaning

thereby, the reasonable apprehension with regard to harm or injury should

be such which may not be bearable to lead a normal life. As per the

records and the testimony of the respondent, there appears to be no

material which may create a reasonable apprehension in the mind of the

appellant resulting into harm or injury in incident which may not be

bearable or irreparable because of which the appellant cannot lead a

matrimonial life along with the respondent. The petition in fact is devoid

of any such act by way of which the husband of the appellant has harmed

her in any way rather from the entire case as set up by the respondent

before the Ld.Trial Judge it appears that the appellant's desires have

always been fulfilled but the same has not been appreciated by her in

good spirit.

13. Section 9 of the HMA talks about restitution of conjugal rights. If

any of the spouses has left the company of the other without giving any

reasonable ground, the HMA gives such spouse a remedy in the form of

restitution of conjugal rights under Section 9 to re- establish those ties.

Even if the contention of the appellant of any sort of harassment is

accepted to be correct, neither does it reveal that the respondent harmed

her in an unreasonable manner, nor any such behaviour of the respondent

shows that he wants to put an end to the marital relationship and had left

the matrimonial house to break the ties. On the contrary, the respondent

has stated that he was always ready and willing to reside with the

appellant. Wife is under an obligation to live with her husband in his

home and under the same roof except in a case of distinct and specific

misconduct on the part of the husband. The marital obligation has been

buttressed by clear statutory recognition under Section 9 of the HMA

( Ref: Kailash Wati v. Ayondhya Prakash, 1977 (79) PLR 175).

14. It is also to be noted that the appellant-wife and the respondent-

husband are staying apart from 02.10.2008, but during this time, the

husband made all possible efforts to reconcile and fulfilled all his

responsibilities towards his children or his wife. Thus in this background,

now the claim of the wife seem untenable. Marriage involves human

sentiments and emotions and if there is still any ray of hope regards

reconcilement then in such a scenario the court may not take a contrary

view.

15. Thus, taking a panoramic view of the case at hand, this court feels

that the learned trial court has rightly dealt with the entire set of

circumstances and the evidence adduced by them in support thereof

including the applicable law in the right perspective. While adjudicating

matrimonial cases, the courts have to be cautious and conscious of the

fact that the holy bond of matrimony involves delicate human emotions

and complex situations and often there gets created a chasm which if not

fortified by the court can lead to irredeemable destruction.

16. Thus, this Court does not find any kind of illegality or perversity in

the findings given by the learned Trial Court in the impugned judgment

dated 16.05.2014. The Appellant has failed to establish any cogent

ground on which the respondent is proved guilty for his conduct towards

his family or the family members of the appellant. In the light of the

aforesaid discussion, the present appeal is dismissed and the impugned

judgment and decree dated 16.05.2014 passed by the learned trial court is

hereby upheld.

17. It is ordered accordingly.

KAILASH GAMBHIR, J.

P.S.TEJI, J.

AUGUST 17, 2015 v