Delhi High Court
Smt. Sahana Pal vs U.K.Samanta on 24 July, 2015
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 03.07.2015
% Judgment delivered on: 24.07.2015
+ MAT.APP. 41/2011
SMT SAHANA PAL ..... Appellant
Through: Mr. Ranjan Mukherjee & Mr. S.
Bhowmick, Advocates along with
appellant in person.
versus
UK SAMANTA ..... Respondent
Through: Ms. Beenashaw N. Soni, Advocate
along with respondent in person.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. This appeal, preferred under Section 28 of the Hindu Marriage Act,
1955 (HMA) assails the judgment/ order dated 30.08.2010 passed by
Ms.Seema Maini, ADJ (3) North, Tis Hazari Courts, Delhi in HMA
No.125/2009 preferred by the appellant/petitioner/wife under Section
13(1)(ia) of the HMA seeking a decree for dissolution of marriage on the
ground that, after the solemnization of the marriage, the respondent/
husband treated the petitioner/wife with cruelty. The learned ADJ dismissed
the divorce petition by the impugned judgment.
2. The marriage between the petitioner and the respondent was
solemnized on 22.10.2006 as per the Hindu rites and ceremonies at Durga
Bari, Greater Kailash Part-I, New Delhi. At the time of the marriage, the
petitioner/ wife and the respondent/ husband were 41 and 48 years of age
respectively. The respondent was a divorcee. For the petitioner/ wife, it
was the first marriage.
3. The case of the appellant/ petitioner was that after the marriage, the
parties cohabited as husband and wife. However, no issue was born out of
their wedlock.
4. The petitioner averred that after the marriage, she was taken to
Bombay (Mumbai) at the matrimonial house on 10.11.2006, after a short trip
to Kullu-Manali. At the time of marriage, the respondent represented that he
had no demand of dowry, or any other article. However, the father of the
petitioner had given articles/ jewellery, etc, as the petitioner is his only
daughter. After the marriage, the respondent started harassing and torturing
the petitioner by stating that the items which were given at the time of
marriage by the petitioner‟s father, were insufficient. Soon after the
marriage, all the jewellery and other articles of the petitioner were taken by
the respondent and the petitioner, believing that he is acting in good faith,
gave her jewellery, cash, etc. to the respondent, which was still being kept
and retained by him. The respondent would tell the petitioner that there
were several other offers for marriage with him, from persons who were
willing to give much more dowry than what was given by the petitioner‟s
father. The petitioner also averred that the respondent used to abuse, and
even beat the petitioner, during her stay at the matrimonial house for not
bringing sufficient dowry according to his wishes. The efforts of the
petitioner to make the respondent understand that her father had given
enough dowry in marriage, and to be satisfied with what was given by the
petitioner‟s father was not heeded to, and his greed was not satisfied. He
continued to harass and torture the petitioner mentally and physically and
also abused the father of the petitioner.
5. The petitioner also averred that after some time of marriage, the
respondent started insisting that the petitioner‟s house situated at Saket, New
Delhi, which was in the name of the petitioner, be transferred to his name.
On refusal of the petitioner to do so, the respondent abused the petitioner
and her father by using filthy language. He did not show any respect either
for the petitioner, or for her father. The torture and beatings grew to such an
extent that the petitioner was forced to leave the matrimonial home at
Mumbai on 24.11.2006 after staying there for only 14 days.
6. The petitioner states that after few days, the respondent came to Delhi
and apologized for his behavior and promised that he would now behave in a
proper manner towards the petitioner and assured that he would not repeat
his earlier conduct. The petitioner being a Hindu devoted wife, believed the
said version of the respondent and, accordingly, accompanied the respondent
to Mumbai on 12.12.2006.
7. The petitioner states that during the journey from Delhi to Mumbai
itself, the respondent again showed his true colours by ignoring the
petitioner and not caring for her requirements of food, water and other
things. On the railway station, the respondent snatched the luggage of the
petitioner and went to his house leaving the petitioner at the railway station.
The petitioner was left crying at the railway station and after waiting for
about 2½ hours, the respondent came back to the railway station and
forcibly took the petitioner pulling her hands in front of the public. The
petitioner had no other alternative but to accompany the respondent to the
matrimonial home.
8. The petitioner further states that on reaching Mumbai, the respondent
again started harassing, torturing and beating the petitioner by insisting that
the property situated at Saket, New Delhi should be immediately transferred
in his name. He even disclosed that he had married the petitioner only on
account of the property held by the petitioner. This came as a shock to, and
astonished the petitioner, as she never expected her husband to behave in
that way. On refusal of the petitioner to transfer the said property in the
name of the respondent, he used to beat her every now and then.
9. The petitioner states that the respondent used to go to his office
locking the main door of the flat so that the petitioner may not go anywhere,
or talk to any neighbor in his absence. He would even lock the door of the
bathroom from outside when the petitioner was in the bathroom. During her
stay at the matrimonial house, the petitioner was not allowed to talk to her
father on phone. He would lock the telephone, so that the petitioner may not
call anybody, including her ailing father. He would come back to the house
drunk, and use foul language against the petitioner and her father. The
petitioner states that she had to stay at the house the whole day, and could
not call anybody even if there was an emergency.
10. The petitioner states that the respondent used to bring several girls
along with him to the matrimonial house in the presence of the petitioner.
The petitioner has disclosed the names of several of these girls. She stated
that the respondent claimed that they were all ready to marry him.
Sometimes these girls used to stay at the matrimonial house of the petitioner
even during the night.
11. The petitioner states that the aforesaid behavior of the respondent
revealed to the petitioner that the respondent had married the petitioner only
for the sake of her property and because of dowry. He used to torture the
petitioner and never showed any love and regard towards the petitioner. The
torture and beatings increased day-by-day, and ultimately on 04.01.2007, the
petitioner was turned out of the matrimonial house. She was not allowed to
bring her jewellery articles, clothes, utensils, garments, etc. which are still
with the respondent and despite several requests and demands, the
respondent has not returned the same till date.
12. The petitioner states that she is residing with her old father at Saket,
New Delhi. The petitioner states that even after her return to Delhi, the
respondent on several occasions visited the parental house of the petitioner
and stayed there forcibly. Even during the said stays, he expressed that the
petitioner should ask her father to transfer the house at Saket in his name.
The petitioner states that on 26.04.2007, the respondent came to the parental
house of the petitioner in the evening, when the petitioner was not there, and
only her father was there. When the petitioner came back, the respondent
started quarrelling with the petitioner and her father. The petitioner refused
the permission to the respondent to stay at the night, and on this, the
respondent became angry and pulled the petitioner by her hair and slapped
her. Only after a lot of effort, the petitioner could get him out of her
parental house. The respondent came back on the next morning in a
drunken state and started shouting loudly and abusing the petitioner and her
father in the presence of neighbours and labourers, who were present on the
road. The situation became so disgraceful and shameful - because the
respondent refused to leave, that finding no alternative, the police had to be
called to save the petitioner and her father.
13. The petitioner states that the respondent has been threatening the
petitioner and her father to implicate them in false criminal cases, and of
dire consequences. He has even threatened the petitioner that if the property
at Saket is not transferred in his name, he will not allow the petitioner to
return to her matrimonial home. The petitioner states that the aforesaid
conduct of the respondent amounts to physical and mental cruelty against
the petitioner, due to which, it has become impossible for the petitioner to
live with the respondent.
14. Upon being noticed, the respondent filed his written statement in
March 2009. He denied all the allegations made by the petitioner/ wife
against him. He stated that the petitioner voluntarily left the society of the
respondent, and she had been living separately out of her own choice. The
respondent stated that it was a simple marriage conducted at a temple
without inviting any persons, except a Cameraman and a Purohit. He stated
that no reception was held by the petitioner‟s father to avoid expenditure.
He stated that he made payments to the Photographer and Purohit. He states
that the entire expenses on marriage was only Rs.4,000/-, including the
offerings to the Purohit, which were paid by him. He stated that the match
was arranged through an organization, namely „Sycorian Matrimonial
Services Limited‟, wherein an advertisement was issued at the petitioner‟s
behest.
15. The respondent denied that the father of the petitioner gave any dowry
articles, including jewellery, etc. or that the said articles are being kept and
retained by the respondent. He states that he neither demanded any dowry
prior to the marriage, nor after the marriage. He admits that the petitioner
was taken to her matrimonial house at Mumbai on 10.11.2006 after a short
trip to Kullu-Manali. He claims that the respondent gave several valuables
such as costly sarees, gift items, jewellery and room decoration items to the
petitioner and the expenses for the same were borne by him alone. He
denies that quarrel took place between the parties in relation to the dowry
items.
16. He also denies that he insisted that the petitioner transfers her
property in his name. He states that the petitioner pressurized the
respondent to come to Delhi to look after her old father, as he was residing
alone in Delhi. He states that the petitioner and her father pressurized the
respondent to become a „Ghar Damad‟, as the petitioner had no one in her
family to look after her old father. He states that on account of the bad
behaviour and doubtful nature of the petitioner and her father, none of her
relatives or friends have maintained any relations with her, or her father. He
states that the petitioner and her father had claimed that the brother of the
petitioner, in collusion with other relatives, wanted to grab their house at
Saket, which is now valued at Rs.2 Crores. He states that the intention of
the petitioner and her father was to keep the respondent as „Ghar Damad‟ to
protect and maintain the house and also to look after them for their security,
safety and maintenance.
17. The respondent denies that he ever apologized to the petitioner for his
alleged behavior, or promised that he would behave in a proper manner with
the petitioner, since there was no question of offering any apology, as no
instance, as alleged, took place. He denied the allegations of the petitioner
that she was not permitted to meet the neighbours and relatives while
staying in the matrimonial house, or of locking her inside the bathroom.
18. The respondent stated that he opposed the entry of one Rajiv Ranjan
Sinha, who was alleged to be the boyfriend of the petitioner, as the petitioner
disclosed herself that "she had sexual relationship with Mr. Rajiv Ranjan
Sinha for years before the marriage". He claimed that he had requested the
petitioner to discontinue her physical relationship with Mr. Rajiv Ranjan
Sinha "who not only continued the physical relationship with the petitioner
but also misguiding her each and every moment against the respondent and
one of the root cause of creating problems in their matrimonial life". He
sought to place reliance on the telephone bills of the calls allegedly made by
the petitioner from Mumbai to her father in Delhi.
19. The respondent claimed that he was a Chartered President of Lions
Club and a life member of many organizations. He introduced the petitioner
as his wife to his neighbours, friends, press reporters, photographers,
advocates, etc. in both in Delhi and Mumbai. He stated that the names of
the ladies disclosed by the petitioner, who were allegedly having
extramarital relationship with the respondent, were the persons to whom the
petitioner was introduced in the respondent‟s circle. He further stated that
"In fact such doubt of grabbing house property is nothing but a dangerous
allegation injected by Rajiv Ranjan Sinha into the mind of petitioner with a
malafide intention to break the relationship of the petitioner with the
respondent".
20. The respondent while denying that jewellery and valuable articles,
household articles etc. belonging to the petitioner were lying with him,
stated that the petitioner "kept her all valuable jewelleries, utensils,
garments and the valuable awards of the respondent, important certificates
and business documents, documents of the house property of Mumbai
belonging to the respondent, the gold and valuable of the mother of the
respondent, etc. were theft and kept under lock and key by the petitioner at
her house at Saket, New Delhi. As the respondent do not want any
matrimonial dispute and still having love affection towards the petitioner,
did not take any legal action against the petitioner". (Emphasis supplied)
21. The respondent does not deny that an unpleasant and untoward
incident took place at the residence of the petitioner in Delhi on 25 -
26.04.2007. However, he has his own version of the said incident. In his
version, the respondent has sought to put the blame on the petitioner and her
father. He states that since 25.04.2007, the respondent is separated by the
petitioner without any rhyme or reason.
22. The respondent denies that he has physically or mentally tortured, or
harassed the petitioner, or that he has demanded dowry, house property, or
any other property from the petitioner. He denied that he has treated the
petitioner with cruelty. He states that he has full love and affection for the
petitioner and wants to stay with her to keep mental peace and harmony in
his matrimonial life. However, he states that he is not ready to stay as „Ghar
Damad‟ at Saket, New Delhi by selling his house at Mumbai, or leaving his
business in Mumbai.
23. The petitioner moved an application dated 16.07.2008 under Section
24 of the HMA. This application was opposed by the respondent. In his
reply to this application, he, inter alia, stated that "... ... ... the boyfriend of
the petitioner Mr. Rajiv Ranjan Sinha misleaded the petitioner that the said
Advocate took the signature of the petitioner in the documents for
encroaching her house property in collusion with the respondent.
Thereafter, the entire dispute arises between the parties".
24. The application of the petitioner/ wife under Section 24 was disposed
of vide order dated 01.08.2009. The petitioner was granted maintenance of
an amount of Rs.6,500/- per month from the date of filing of the application
together with litigation expenses of Rs.10,000/-. The respondent, however,
did not comply with the said order. Since he had not appeared before the
Court on 01.09.2009 despite repeated calls, he was proceeded ex-parte. On
01.10.2009, the respondent appeared and stated that he would move an
application for setting aside of the ex-parte proceeding. However, he did not
appear before the Court on 21.11.2009. The application was moved only
later on 21.12.2009, and it was allowed on 14.01.2010 subject to payment of
costs. However, he did not pay the maintenance.
25. The learned ADJ set aside the ex-parte proceedings against the
respondent on 14.01.2010, and also framed the issues. The first issue was
whether the petitioner has been treated with cruelty by the respondent, as
alleged. The onus to prove the same was placed on the petitioner. The third
issue framed was whether the petitioner has left the company of the
respondent without any reasonable cause. The onus to prove this issue was
placed on the respondent.
26. The petitioner examined herself as PW-1. She filed her affidavit by
way of evidence (Exhibit PW-1/A), which is in consonance with her
averments made in her petition. She was cross-examined by the
respondent‟s counsel on 12.05.2010, whereafter she closed her evidence in
affirmative on 21.07.2010.
27. Since no payment of awarded maintenance was made to the petitioner
despite several opportunities, on 21.07.2010, the Court struck off the
defence of the respondent and closed the right of the respondent to lead
evidence. While passing this order, the learned ADJ observed that it is quite
apparent that the respondent is deliberately flouting the orders of the Court
and his conduct had been shown indulgence and latitude for nearly one year.
The case was listed for final arguments on 16.08.2010.
28. Arguments were finally heard by the learned ADJ on 16.08.2010.
Pertinently, none represented the respondent and no arguments were
advanced on his behalf. The learned ADJ then proceeded to pass the
impugned judgment dismissing the petitioner‟s petition under Section
13(1)(ia) of the HMA.
29. The submission of Mr. Mukherjee, learned counsel for the petitioner
is that the impugned judgment is patently laconic and the findings returned
by the learned ADJ border on perversity. He submits that even though the
respondent filed his written statement denying the averments made in the
petition with regard to the cruelty perpetrated by the respondent on the
petitioner, and further went on to make serious allegations impinging on the
character of the petitioner by accusing her of maintaining an adulterous
relationship with one Rajiv Ranjan Sinha, he did not lead any evidence
either to deny the substantial allegations made against him in the petition, or
to prove his own allegation of adultery made against the petitioner.
Moreover, his defence having been struck off, the written statement could
not have been read or relied upon by the respondent.
30. Mr. Mukherjee submits that the petitioner was cross-examined by the
respondent‟s counsel and he has referred to the said cross-examination to
submit that the petitioner withstood the said cross-examination perfectly
well, and there is nothing in the cross-examination of the petitioner to
discredit her testimony in chief. Mr. Mukherjee submits that since the
defence of the respondent had been struck off, the learned ADJ was not
entitled to look into the same. However, on the basis of the written
statement of the respondent - which was never substantiated by the
respondent by leading any evidence, the learned ADJ dismissed the divorce
petition.
31. Mr. Mukherjee submits that the learned ADJ gave undue weightage to
the fact that the petitioner did not file any replication to the written statement
of the respondent so as to refute the assertions of the respondent in his
written statement. In paragraph 22 of the impugned judgment, the learned
ADJ, inter alia, observed "The petitioner did not refute any of these
assertions by filing any replication to the written statement". He submits
that the non-filing of the replication does not tantamount to the petitioner
admitting the averments of the respondent as contained in the written
statement.
32. Mr. Mukherjee submits that despite the fact that the respondent did
not lead any evidence in support of his defence, the learned ADJ disbelieved
the petitioner‟s assertion that the respondent demanded, post the marriage,
dowry and was particularly interested in grabbing the petitioner‟s property at
Saket, New Delhi, by observing:
"Being a divorcee ones, it seems implausible that the
respondent would have entered into the second marriage with
an underline intention to disrupt the marriage with demands of
dowry, gifts and the consequent torture of the petitioner / wife
only on her incapability of fulfilling his demands. Admittedly,
by the petitioner, she stayed in the matrimonial home at the first
evoke, only for 14 days, and the respondent could have tortured
for that demands, if true, would not have made the petitioner,
who was a matured person of 41 years of age, to accompany
the respondent at the matrimonial home, without much ado".
33. The learned ADJ also did not believe the case of the petitioner that
she was not kept in captivity by the respondent, by observing that the
petitioner could have raised a hue and cry and called for help from the
neighbours & the maid servant, and she could have made an attempt to run
away from the house.
34. The learned ADJ while dealing with the case of the petitioner on the
aspect of physical assault, torture and convention by the respondent
observed as follows:
"The petitioner has stressed upon that she used to be locked in
the house by the respondent with only a maid servant visiting
the house from 8 a.m. to 9 a.m. However, if human psychology
is kept in mind, it would transpire that a person who was o
stressed and forced to live in captivity, being locked by the
husband in the house for the entire day, would have made any
desperate effort to escape from the captivity. The petitioner
could have slammed on the doors, windows, shouted for the
neighbours and if a maid servant was the only person coming
into her contact, then she would have made an attempt to bring
her owes into her knowledge either vocally or in writing. Even
otherwise, if such a drastic stand was taken by the respondent
in locking the petitioner inside the house for no rhyme or
reason, nothing stopped the petitioner from raising hue and cry
and making an attempt to run away from the house. The very
fact that no such effort was made by the petitioner only goes to
show that the allegations made by her are quite implausible
and therefore lacks truthfulness. It is also hard to believe that
admittedly, the respondent being an Engineer by profession,
being awarded socially and living in Mumbai, would not be
having the facility of a telephone in his house. Even though, the
defence of the respondent was struck off and the evidence on
which he was supposed to rely upon could not be taken on
record technically, but at the same time, the assertions made by
him in the written statement can not be ignored, and the factum
of petitioner communicating with her father on phone is
asserted emphatically and it has also been mentioned that
phone records have also been filed as necessary annexures. It is
to be noted that petitioner has not refuted any of these
assertions by filing a replication to the written statement."
35. Mr. Mukherjee submits that even though the respondent did not lead
any evidence in his defence, the learned ADJ not only rejected the
petitioner‟s assertion with regard to the respondent having illicit relationship
with other ladies, but also proceeded to make the following unjustified and
unfounded observation:
"Rather the mentioning of 7-8 names of girls and imputing
untoward relations of these girls, if they actually exist, with the
respondent, is rather fortifying the assertions of the respondent
that the petitioner was a suspicious woman, who always
doubted the respondent's character."
36. Mr. Mukherjee further submits that the learned ADJ fell into
perversity while observing that the petitioner had not named Mr. Rajiv
Ranjan Sinha in her petition. Merely because the petitioner had not filed the
replication to the written statement of the respondent, wherein he claimed
that Rajiv Ranjan Sinha was the paramour of the petitioner, and only on
account of the fact that the petitioner admitted in her cross-examination that
Rajiv Ranjan Sinha was a family friend from her father‟s side for about six
months prior to her marriage, and he attended the award function in which
the respondent was felicitated, the learned ADJ has sought to raise a
presumption that the petitioner was in an adulterous relationship with him.
On the said aspect, the learned ADJ observed that:
"It is to be noted that the name of Mr. Rajiv Ranjan Sinha has
not been mentioned at all by the petitioner in her petition, even
though, it found a mention in the written statement of the
respondent. But thereafter, petitioner did not bother to refute
any of the assertions. Admittedly, in the cross examination of
the petitioner, the petitioner was acquainted with him only 6
months prior to her marriage. A 6 months acquaintance seems
to be a short acquaintance for the person to be termed as a
family friend. But the fact that he also attended the award
function in which the respondent was felicitated does seem
untoward."
37. Mr. Mukherjee further submits that the learned ADJ further fell into
error by observing that it was the petitioner who treated the respondent with
cruelty, by not allowing him to enter her parental house in Delhi and by not
giving him the respect that was due, even though no evidence in support of
his version had been led by the respondent in relation to the incident of
25.04.2007. The learned ADJ on this aspect observed as follows:
"It is admitted by the petitioner that on 25.4.2007, when she
had again come to her parental house, she and her father did
not allow him to enter the house. In this scenario, the very fact
that on 25.4.2007, the respondent had once again come to
Delhi at the parental house of the petitioner, the petitioner and
her father's attitude in not allowing him to enter the house,
rather shows that it was the petitioner who was cruel towards
the respondent, by not giving him the respect that was due. It
seems ironical that the petitioner who talks of being ashamed to
say anything about her plight to the maid servant, would create
a scene at her parental house by not allowing her husband to
enter the parental house."
38. Mr. Mukherjee further submits that the learned ADJ has rejected the
petitioner‟s case and testimony of her being beaten up on several times on
the ground that there was no record of the medical treatment and no person
had witnessed the same, and that she had not sent any letter to her father, or
family friend Rajiv Ranjan Sinha. There was no evidence that the
respondent had demanded the petitioner to transfer the house at Saket in his
name. The learned ADJ held that the allegations of the petitioner are vague,
ambiguous and appear to be a figment of her imagination and do not inspire
confidence. Mr. Mukherjee submits that the petitioner‟s evidence had gone
unrebutted. There was no reason for the learned ADJ to disregard the same.
He further submits that it is not necessary that physical injuries caused by
the husband on the person of the wife should necessarily result in medical
treatment, or a recording in the form of a letter, or otherwise. He submits
that the marriage between the petitioner and the respondent subsisted for
very short durations. On the first occasion, the petitioner left the
matrimonial house in just 14 days (i.e. between 10.11.2006 to 24.11.2006);
and on the second occasion, the petitioner had stayed at the matrimonial
house with the respondent at Mumbai for about three weeks (i.e. between
12.12.2006 to 04.01.2007). Thus, the period of the petitioner‟s stay in
Mumbai, in the matrimonial house with the respondent, during which she
suffered physical and mental torture at the hands of the respondent was so
short that there was no occasion to record the acts of cruelty and ill-
treatment meted out by the respondent to the petitioner in the form of letters
to her father.
39. Mr. Mukherjee further submits that the impugned judgment is
contradictory in itself. He submits that while deciding issue No.1 against
the appellant, i.e. whether the petitioner has been treated with cruelty by the
respondent, issue No.3 has been decided in favour of the appellant/
petitioner. The said issue was "whether the petitioner has left the company
of the respondent without any reasonable cause? OPR". He submits that
since issue No.3 has been decided in favour of the appellant, the finding
returned is that the appellant did not leave the company of the respondent
without any reasonable cause. The appellant had good reasons for leaving
the company of the respondent and returning from Mumbai on 04.01.2007.
Mr. Mukherjee submits that the finding on issue No.3 in favour of the
appellant itself establishes the charge against the respondent that he had
acted with cruelty towards the appellant, which justified the appellant‟s
leaving the matrimonial home at Mumbai on 04.01.2007. Mr. Mukherjee
further submits that the serious allegations made by the respondent in his
written statement before the learned ADJ, as well as before this Court in
reply to C.M. No.11012/2011 of the appellant having an adulterous
relationship with Rajiv Ranjan Sinha is itself evidence of character
assassination of the appellant. The said allegation is baseless and unfounded
and the same tantamount to cogent severe mental cruelty to the appellant.
40. On the other hand, learned counsel for the respondent fully supports
the impugned judgment. She submits that the appellant did not file
replication to refute the averments made by the respondent in his written
statement. Consequently, they are deemed to be admitted and do not require
proof. She submits that the failure of the respondent to lead evidence,
therefore, does not adversely affect the case of the respondent.
41. Learned counsel for the respondent further submits that the appellant
has been calling the respondent to visit her and live with her from time to
time. Even after the dismissal of the divorce petition by the impugned
judgment, the respondent was called by the appellant to Delhi. The
appellant came to Delhi on 26.09.2010 along with his friend - one Mr.
Tambe, by an Air India flight. She submits that the parties spent time
together and from 26.09.2010 onwards the respondent resided in the house
of the appellant for 3-4 months continuously up to December 2010. During
this period, the respondent purchased Mangal Sutra, Vermillion (Sindoor),
Conch-Bangle (Sankha), Jewellery Set, Sarees and also the dresses for her
father on 30.10.2010. She submits that the appellant and the respondent
joined the Durga Puja and Kali Puja celebrations and celebrated Diwali and
Bhai Duj festival together in Delhi. The respondent also celebrated birthday
of the respondent on 04.12.2010 at the residence of the appellant. During
this period, they lived and cohabited together as husband and wife. Learned
counsel submits that the appellant had during this period apologized for
filing the divorce petition as "she was misguided by her boyfriend Rajiv
Ranjan Sinha and her advocate". Learned counsel submits that the facts
have been brought on record in the reply filed by the respondent to
application of the appellant to seek condonation of delay (C.M.
No.11012/2011). The respondent submits that after the said cohabitation,
the cause of actions pleaded by the appellant stands extinguished and no
decree of divorce can be passed.
42. Learned counsel submits that the appellant, apart from making bald
assertions of the respondent treating her with physical and mental cruelty,
did not produce any evidence whatsoever, either by producing any medical
record; any correspondence regarding the alleged acts of cruelty on the part
of the respondent; any communication from the respondent demanding
dowry after the marriage, and; any other witness to the alleged acts of
cruelty. The learned ADJ rightly did not accept the self-serving and un-
substantiated statement of the appellant while dismissing the divorce
petition.
43. In his rejoinder, Mr. Mukherjee submits that the appellant never
resided with the respondent, as alleged, after dismissal of the divorce
petition. He submits that the appellant has filed a detailed rejoinder in C.M.
No.11012/2011, vehemently denying all the allegations. He submits that the
documents produced by the respondent with the reply to C.M.
No.11012/2011 are forged and fabricated. He submits that the respondent,
apart from producing a few photographs and few photocopies of vague bills,
has not chosen to seek leave of the Court to lead any additional evidence.
The documents now sought to be produced along with the reply to C.M.
No.11012/2011, therefore, cannot be relied upon by the respondent, or
looked into by the Court.
44. From the record, it appears that on 11.03.2015, the appellant stated
before the Court that, without prejudice to the rights and contentions of the
appellant, she is prepared to part company with the respondent without any
financial implication. Consequently, the Court directed the respondent to
remain present in Court. The respondent, however, did not appear and,
consequently, the case was adjourned to 03.07.2015. On the said date, both
the parties appeared. The Court interacted with the parties. The appellant
claimed that there was nothing left in the marriage since they had lived for
just about 2 weeks and 3 weeks together since their marriage, which was
solemnized nearly 9 years ago. She further stated that the respondent has
not even paid the maintenance, as directed by the Trial Court. She
submitted that her two short stays of 2 week and 3 weeks with the
respondent had left her with a bitter experience, as she realized that the only
reason why the respondent married the appellant was that he was interested
in her residential property at Saket, New Delhi. She submits that after the
marriage, the respondent kept on insisting that the said property be disposed
of and the proceeds be taken to Mumbai. She stated that she did not want
anything from the respondent, and she wants freedom from the formal
relationship of husband and wife with the respondent.
45. On the other hand, the respondent stated that he still loves the
appellant and he considers it his duty to protect and look after the appellant.
He stated that as a husband, it is his duty to safeguard the appellant and keep
her away from other influences. He stated that he is willing to overlook the
past conduct of the appellant and to even now resume cohabitation with the
appellant. He denied that he is interested in her property. He stated that at
the time of marriage, he did not demand dowry and none was given. A
simple marriage was held with no other celebrations, and he had borne the
entire expenses.
46. As noticed above, the respondent/husband apart from filing his
written statement, did not appear before the learned ADJ to defend himself.
On account of his failure to pay the maintenance, as ordered by the Trial
Court, his defence was struck off vide order dated 21.07.2010. The effect of
the defence of the respondent being struck off would be that the respondent
would not be entitled to rely upon the defence set up by him in his written
statement and the Court would also not give any weightage to the same. In
the present case, the respondent‟s defence having been struck off, it
tantamounted to there being no written statement/defence on the record. In
this regard, reference may be made to Paradise Industrial Corporation v.
Kiln Plastic Products, (1976) 1 SCC 91. The Supreme Court in this
decision, inter alia, observed as follows:
".... .... The phrase "defence struck off'' or "defence struck out"
is not unknown in the sphere of law. Indeed it finds a place in
Order XI Rule 21 of the Code of Civil Procedure.... In effect,
both mean the same thing. Nobody could have misunderstood
what was meant. ..... .... .... ...Even when a defence is struck off
the defendant is entitled to appear, cross-examine the plaintiffs
witnesses and submit that even on the basis of the evidence on
behalf of the plaintiff a decree cannot be passed against him,...
...."
47. Reference may also be made to M/s Babbar Sewing Machine Co. v.
Triloknath Mahajan, (1978) 4 SCC 188. In this case, the Supreme Court,
while dealing with the provision contained in Order 11 Rule 21 CPC (which
deals with the effect of non-compliance with order for discovery), inter alia,
observed as follows:
"... ... A perusal of Order XI, Rule 21 shows that where a
defence is to be struck off in the circumstances mentioned
therein, the order would be that the defendant "be placed in the
same position as if he has not defended". This indicates that
once the defence is struck off under Order XI, Rule 21, the
position would be as if the defendant had not defended and
accordingly the suit would proceed ex parte. In Sangram Singh
v. Election Tribunal 1955 (2) SCR 1 , it was held that if the
court proceeds ex parte against the defendant under Order IX,
Rule 6(a), the defendant is still entitled to cross-examine the
witnesses examined by the plaintiff... ...."
48. These decisions have been followed in Modula India v. Kamakshya
Singh Deo, (1988) 4 SCC 619. The Supreme Court while dealing with a
case falling under West Bengal Premises Tenancy Act, 1956, inter alia,
observed:
"even in a case where the defence against delivery of
possession of a tenant is struck off under Section 17(4) of the
Act, the defendant, subject to the exercise of an appropriate
discretion by the court on the facts of a particular case, would
generally be entitled:
(a) to cross-examine the plaintiff's witnesses; and
(b) to address argument on the basis of the plaintiff's case.
We would like to make it clear that the defendant would not be
entitled to lead any evidence of his own nor can his cross-
examination be permitted to travel beyond the very limited
objective of pointing out the falsity or weaknesses of the
plaintiff's case. In no circumstances should the cross-
examination be permitted to travel beyond this legitimate scope
and to convert itself virtually into a presentation of the
defendant's case either directly or in the form of suggestions put
to the plaintiff's witnesses."
49. A Division Bench of this Court has applied the decision in Modula
(supra) in Kulbhushan Seth v. Seema Seth & Ors., 2008 (2) ILR (Del) 698.
The defence of the appellant had been struck off by the learned Single Judge
because the appellant failed to file an affidavit disclosing his gross salary.
In appeal, the appellant sought to place reliance on Modula (supra) to
contend that inspite of the defence of the defendant/appellant having been
struck off, the Court was bound to look into his written statement. After
setting out the above extract from Modula (supra), the Division Bench
observed:
"5. A perusal of the above judgment of the Hon'ble Supreme
Court makes it clear that the right of the defendant in such a
situation is to cross-examine the plaintiff's witnesses and to
address arguments on the basis of the plaintiff's case. It has
also been held that in no circumstances the cross-examination
can be permitted to travel beyond the legitimate scope and to
convert itself virtually to a presentation of the defendant's case
either directly or in the form of suggestions put to the plaintiff's
witnesses. In our view, this itself shows that the judgment of the
Hon'ble Supreme Court does not support the plea advanced by
the learned Counsel for the appellant and on the contrary
supports the stand of the respondent that the appellant's written
statement cannot be taken in account. Accordingly, there is no
merit in the appeal".
50. In any event, a pleading is not evidence, and cases are required to be
decided on the basis of evidence. The Court cannot proceed on the basis of
a mere pleading, unless the same is admitted, and if disputed, is
substantiated by acceptable evidence. Since the defence of the respondent
had been struck off, the learned ADJ ought not to have looked into the same
while rendering the impugned judgment.
51. A perusal of the impugned judgment shows that the learned ADJ has
placed reliance on the written statement, merely on account of the fact that
the appellant/petitioner did not file a replication to the written statement of
the respondent. It is well-settled that a replication does not form part of the
pleading. The divorce petition had been preferred by the appellant. The
respondent had not preferred his own petition, either to seek divorce, or to
seek restitution of conjugal rights on the basis of the averments contained in
his written statement. The petitioner was, therefore, not obliged to file a
replication to the said written statement, as she had to establish her own case
of cruelty pleaded against the respondent, and it was for the respondent to
defend that charge of the appellant/petitioner.
52. In Anant Construction (P) Ltd. v. Ram Niwas, 1994 (31) DRJ 205,
this Court has observed, inter alia, as follows:
"9. It is basic concept of pleadings that a defendant has to deny
specifically every averment made in the plaint if he choses to
dispute the same. As already stated, a non-specific or evasive
denial in written statement may be taken as an admission of
plaint facts. A failure to file WS would enable the Court
pronouncing judgment against the defaulting defendant.
However, a plaintiff is not to be treated similarly. Every
material averment made in the written statement is presumed
to be denied by the plaintiff and for that purpose he need not
file a replication.
x x x x x x x x x x
21.1 The law of pleadings does not require a plaintiff to file a
replication merely denying the allegations made in the written
statement. Failure to file a replication cannot be treated as an
admission of the plea in the written statement. Veemsekhara v.
Amirthavalliammal, MANU/TN/0147/1975 : AIR1975Mad51 ,
Laxmansing. v. Laxminarayan Deosthan. MANU/NA/0143/1947
: Air 1948 Nag 127, Bank of Behar Ltd v. Madhusudan Lal, Air
1937 Pat 4281.
21.2 In Amarjeet Singh vs Bhagwati Devi 1982 (12) Rlr 156,
this Court has held a pleading to mean plaint and written
statement only. A plaintiff can claim relief on the basis of pleas
in the plaint and not on pleas in the replication.
21.3 In Roshan Lal vs. Prem Prakash, MANU/BH/0010/1980 :
Air 1980 Pat 59, it was held :
"A subsequent pleading by way of defense to a set
off or counter-claim can be filed by the plaintiff as
a matter of right, but the provisions do
contemplate the filing of other pleading as well but
by the leave of the Court and invest the Court with
the widest possible discretion. Either party may,
with the leave of the Court file a supplementary
written statement, but at the same time the law
does not compel the plaintiff to file any rejoinder
to the allegations made in the written statement
and the failure of the plaintiff to file such a
rejoinder, cannot be treated as an admission of
the plea in the written statement. The plaintiff is
entitled to join issues with the defendant with
respect to all those allegations which are made in
the written statement and may lead evidence in
rebuttal of those allegations notwithstanding the
fact that he does not file any rejoinder."
21.4 Moti Ram vs Baldev Krishan MANU/DE/0177/1978 :
15(1979)DLT90 is a single bend decision of this Court. It only
says replication permitted by the Court to. be filed forms part of
the pleading besides the plaint and the written statement, which
strictly constitute pleading under Order 6 Rule I CPC. The
High Court of Punjab has in Mateshwar Dayal Vs Amar Singh,
1983 P&H 197 and Jag Dutta V. Savitri Devi.
MANU/PH/0016/1977 held that replication is a part of the
pleadings and the plea raised therein cannot be overlooked. All
these decisions were cited by the learned counsel for the
petitioner. Suffice it to say that replication if allowed by the
court becomes a part of the pleadings. To this extent there can
be no dispute".
x x x x x x x x x x
24. To sum up:
x x x x x x x x x x
(7) A mere denial of defendant's case by plaintiff needs no
replication. The plaintiff can rely on rule of implied or
assumed traverse and joinder of issue".
(Emphasis supplied)
53. In K. Laxmanan Vs. Thekkayil Padmini and Others, (2009) 1 SCC
354, the Supreme Court held that pleadings, under Order VI Rule 1 CPC
consist of only the plaint and the written statement. The plaintiff could have
filed a replication in respect of the plea raised in the written statement,
which if allowed by the Court, would have become the part of the pleadings.
But mere non-filing of a replication does not and could not mean that there
has been admission of the facts pleaded in the written statement.
54. Despite the above stated legal position, the learned ADJ culled out the
averments of the respondent contained in his written statement in paragraphs
10 to 13 in extenso. In paragraph 22 of the impugned judgment, the learned
ADJ squarely places reliance on the averments made in the written statement
despite the respondent‟s defence having been struck off and he, obviously,
not having led no evidence in support of his defence, by observing, inter
alia, as follows:
"22. Reverting back to the case in hand, the petitioner has
alleged that she was subjected to immense torture, harassment
and even physical beatings at the hands of the respondent in the
matrimonial house in Mumbai, primarily on account of
insufficient dowry. It is pertinent to note at this juncture, that
in the written statement filed by the respondent, he had
specifically denied that no such demands were ever made by
him from the petitioner or her father. He had even asserted
that the marriage was a simple marriage conducted in a temple
where the entire expenses of Rs.4,000/- were also borne by him
or that no gifts or articles were given by the father of the
petitioner at the time of marriage. The petitioner did not
refute any of these assertions by filing any replication to the
written statement.
x x x x x x x x x x
Even though, the defence of the respondent was struck off
and the evidence on which he was supposed to rely upon
could not be taken on record technically, but at the same time,
the assertions made by him in the written statement cannot be
ignored, and the factum of petitioner communicating with her
father on phone is asserted emphatically and it has also been
mentioned that phone records have also been filed as
necessary annexures. It is to be noted that petitioner has not
refuted any of these assertions by filing a replication to the
written statement."
(Emphasis supplied)
55. In my view, the manner in which the learned ADJ proceeded to deal
with the case is completely flawed. The approach of the learned ADJ was
erroneous in law. The learned ADJ should have tested the case of the
appellant as set out by her in her pleadings on the strength of the evidence
led by the appellant, and should not have been influenced by the defence set
up by the respondent as the defence itself had been struck off and remained
un-substantiated. The findings returned by the learned ADJ that "Being a
divorcee ones, it seems implausible that the respondent would have entered
into the second marriage with an underline intention to disrupt the marriage
with demands of dowry, gifts and the consequent torture of the petitioner/
wife only on her incapability of fulfilling his demands", is not supported by
the evidence led in this case. The learned ADJ failed to appreciate that the
respondent, being a divorcee, was more immune to the trauma and
embarrassment associated with it, than the appellant, who was undisputedly,
unmarried and clearly disclosed herself to be a virgin at the time of her
marriage. In the Indian context, generally, a divorce affects the status and
reputation of the woman much more adversely, than it affects a man.
Socially, the embarrassment, shame and stigma attached to divorce
compromises the situation of the woman much more, than the man. It is far
more difficult for a divorced woman to get remarried, than it is for a
divorced man. In Naval Kishore Somani Vs. Poonam Somani, AIR 1999
AP 1, the Court, inter alia, observed:
"18. ..... ..... .....The Indian woman is by nature willing to
sacrifice for purposes of saving matrimonial life...... ...."
56. In John Idiculla & Another Vs. State of Kerala & Another, 2005
Crl.L.J. 2935, the Court observed:
"22. A girl in the family is normally disciplined at home to
bear any hardship and suffering that may shoot up in the
matrimonial life with high degree of patience, courage and
strength for maintaining the matrimonial bond strong and firm.
Her role in life as a wife is considered to be greater than that of
a man as a husband and she is the one who is expected to make
sacrifices to preserve the marriage for the sake of her children
and family. This is the culture of this country. This is the
tradition of this land. This is the concept which runs through
every vein of Indian society.... .... ...."
57. Thus, the woman has much at stake in the preservation of the
marriage by making adjustments in the matrimonial home. There was no
basis for the learned ADJ to observed that it was "implausible that the
respondent would have entered into the second marriage with underlying
intention to disrupt the marriage with demand of dowry, gifts and
consequent torture of the petitioner/ wife only on her incapability to fulfill
his demands".
58. Similarly, the finding that if the appellant had been tortured during her
first stay in the matrimonial home for 14 days, she would not have gone to
her matrimonial home with the respondent once again, to say the least,
borders on perversity. Parties to a marriage - and particularly the woman,
try to preserve the relationship, and are open to giving it a second shot, and
many more chances, in the hope that the relationship would work out. The
parties to a marriage forget and forgive each other‟s perceived mistakes and
conduct, to give another opportunity for the relationship to work. Merely
because the appellant returned with the respondent to Mumbai on the second
occasion, when the respondent himself came to pick her up and take her
back, does not lead to the conclusion that she was not ill-treated, tortured, or
not treated with cruelty during her first stay of 14 days. The Court below
has overlooked the aspect that the appellant woman - for whom it was the
first marriage at the age of 41 years would, want to work the relationship.
She would not leave her matrimonial home all of a sudden after 14 days of
staying together with the respondent at Mumbai, had it not been on account
of some drastic circumstances and situations. The respondent did not bring
on record any material to show that the appellant herself was responsible for
her returning to Delhi, and that she did not have any genuine reason or
grouse, resulting in cruelty, which may have led her to leave the matrimonial
home.
59. As submitted by Mr. Mukherjee, there is a contradiction in the
impugned judgment itself. On the one hand, it has been held that the
appellant/petitioner has not established that she was treated with cruelty by
the respondent while, on the other hand, issue No.3 has been decided in
favour of the appellant - meaning thereby, that the appellant had not left the
company of the respondent without a reasonable cause. The question arises
as to what is that "reasonable cause" which prompted the appellant to leave
her matrimonial home.
60. No doubt, the appellant did not lead evidence of any specific instance
of the alleged cruelty meted out by the respondent while at Mumbai, in the
form of communications to her father, or anyone else, and did not lead
evidence of other witnesses of her being treated with cruelty - namely the
maid in the matrimonial home, or the neighbours of the matrimonial house,
but that failure of the appellant has to be viewed in the light of the fact that
she was in the matrimonial home for very short spell of 2 weeks and 3
weeks. She was in Mumbai, whereas her family was in Delhi. The divorce
petition itself had been instituted about 18 months after the appellant had
lastly separated from the respondent in January 2007. Thus, for her to
gather and lead evidence of the maid servant - who was an employee of the
respondent at the relevant time in December 2006 - January 2007, and of
the neighbours with whom the appellant had no acquaintance, was difficult,
to say the least. Pertinently, in her cross-examination, the appellant had
stated that she has not disclosed regarding her confinement and being locked
up in the house "because the respondent used to be around when the maid
used to come for work and therefore, I was not able to tell. I did not put my
grievances on paper and handed over to the maid for communicating my
grievances to any authority. Vol. I was too ashamed to write such kind of a
letter. I did not make any complaint to the police station also. I left my
matrimonial home for the last time on 04.01.2007. In Delhi, I made a
complaint in CAW Cell against the respondent".
61. In relation to the incident of 25.04.2007, the appellant had deposed in
her examination in chief:
"That on 26.4.07, the respondent came to the parental house of
the deponent in the evening hours, when the deponent was not
there and only her father was there. When the deponent came
back, the respondent started quarreling with the deponent and
her father. At that time, the deponent refused him the
permission to stay at night and on this the respondent became
so angry that he pulled the hairs of the deponent and slapped
her and only after a lot of efforts, the deponent could get him
out of the parental house. The respondent again came their the
next morning in the drunken state and started shouting loudly
and abusing the deponent and her father in the presence of
neighbours and the laborers who were at work on the road.
The situation became so disgraceful and shameful, then the
respondent refused to leave and finding no other alternative,
police had to be called to save the deponent and her father".
62. In her cross examination, the appellant, inter alia, stated:
"It is correct that on 24.04.07, the respondent had come to
Delhi with the intention of taking me back to Mumbai but I did
not agree. It is correct that when respondent came to Delhi on
25.04.07 and came to my parental house, I and my father were
not allowing him to enter the house. Vol., however, the
respondent pushed my father and came in. The respondent
again came a day after in a drunken state and abused me and
my father. I had made a complaint to the police at 100 number,
and the police had arrived but thereafter, no concrete action
was taken by the police".
63. Pertinently, no suggestion was even put to the appellant that she was
deposing falsely in relation to the incident of 25/26.04.2007. The testimony
of the appellant with regard to the said incident has not been shaken at all,
and is completely trustworthy.
64. The aforesaid incident of 25.04.2007 and 26.04.2007 stood
established by the appellant, which demonstrates the violent tendencies of
the respondent. Such conduct speaks volumes about the so-called love,
affection, and respect that the respondent had for the appellant, or the
respect that he bestowed on her father. Such conduct clearly constituted
cruelty under the law, since it led to the appellant suffering embarrassment,
not only in front of her aged father - who was also pushed around and
abused, but also in front of the appellant‟s neighbours. It would have caused
anguish and mental distress to the appellant, and would give cause to the
appellant to genuinely develop fear from the respondent, and a sense of
insecurity in his company.
65. Inspite of the testimony of the appellant in this regard not being
shaken, the learned ADJ returned the finding:
"..... ..... ..... ..... ..... the petitioner and her father‟s attitude in
not allowing him to enter the house, rather shows that it was
the petitioner who was cruel towards the respondent, by not
giving him the respect that was due. It seems ironical that the
petitioner who talks of being ashamed to say anything about
her plight to the maid servant, would create a scene at her
parental house by not allowing her husband to enter the
parental house."
66. When the appellant had returned from Mumbai on 04.01.2007,
obviously on account of serious marital discord - allegedly on account of
the appellant being treated with cruelty, it could not be said that the
appellant acted with cruelty, or was unjustified in not permitting the
respondent to come to her parental house in Delhi. It has come in evidence
of the appellant that the respondent forced his entry into her parental house,
despite being refused entry by the appellant and her father. The respondent
pushed the father of the appellant to get into the house. On the next day, he
came in a drunken state and abused the appellant and her father. It was at
this stage that the appellant had made a call to the police at number 100.
How, in this background, the conduct of the appellant be termed as cruel
towards the respondent, is beyond the understanding of this Court to fathom.
It was not the conduct of the appellant which was under scrutiny, as the
respondent‟s defence had been struck off. It was the conduct of the
respondent that required examination. Pertinently, the respondent neither
sought the setting aside of the order striking off his defence, nor could have
led his evidence in defence, nor appeared at the time of hearing of the
divorce petition to advance his submissions. Yet the learned ADJ proceeded
to make wholly unsubstantiated observations against the appellant which are
contrary to the evidence brought on record.
67. Another instance of the learned ADJ proceeding on the basis of
conjunctures and surmises is the assumption that the respondent being an
Engineer by profession who was socially awarded and living in Mumbai,
would have had the facility of a telephone at his house. There was no basis
to make any such assumptions.
68. The approach of the learned ADJ in seeking to cast a doubt on the
character of the appellant deserves to be denounced in the strongest terms.
It had come in the evidence of the appellant, during her cross-examination,
that Mr. Rajiv Ranjan Sinha was the appellant‟s family friend from the
paternal side. She denied the suggestion that Mr. Rajiv Ranjan Sinha had
accompanied her to an award function where the respondent was felicitated.
She stated that Mr. Rajiv Ranjan Sinha was invited to the award function by
her and the respondent jointly, though, at the respondent‟s instance and that
Mr.Rajiv Ranjan Sinha had come to the award function separately. She
denied the suggestion that Mr. Rajiv Ranjan Sinha was invited by her house
every second day, or that he used to so come, which was objectionable to the
respondent. She had stated that being a family friend, he used to visit her
parental home once in a month, but in her matrimonial home, Mr.Rajiv
Ranjan Sinha was not a visitor even once.
69. She denied the suggestion that she had made a call to Mr. Rajiv
Ranjan Sinha from Manali in order to call him there, or that Rajiv Ranjan
Sinha used to call her at Manali. She also denied the suggestion that she
used to go out at excursions with Rajiv Ranjan Sinha even after marriage or
that she had informed the respondent in Manali that she was interested in
marrying him.
70. Firstly, the said cross examination was beyond the case set up by the
appellant/petitioner and was, therefore, liable to be struck off/ignored in the
light of the settled legal position taken note in Madula (supra). Secondly, in
the face of the aforesaid denials of her liaison with the said Mr. Rajiv Ranjan
Sinha and her clear assertion that he was invited to the award function -
wherein the respondent was felicitated, by the appellant and the respondent
jointly, and on the insistence of the respondent, there was absolutely no
basis or occasion for the learned ADJ to observe "but the fact that he also
attended the award function in which the respondent was felicitated does
seem untoward" (Emphasis supplied). Apart from putting questions and
suggestions to the appellant during her cross-examination in relation to the
said Rajiv Ranjan Sinha (which too was not permissible), the respondent did
not take steps to get his defence reinstated on record and thereafter to lead
any evidence whatsoever to substantiate his grave and serious allegations of
the appellant maintaining an adulterous relationship with the said Rajiv
Ranjan Sinha during the subsistence of the marriage between the parties.
This aspect has been completely lost sight of by the learned ADJ.
71. The Supreme Court in Vidyadhar Vs. Mankikrao, AIR 1999 SC
1441, has observed as follows:
"16. Where a party to the suit does not appear into the witness
box and states his own case on oath and does not offer himself
to be cross examined by the other side, a presumption would
arise that the case set up by him is not correct as has been held
in a series of decisions passed by various High Courts and the
Privy Council beginning from the decision in Sardar
Gurbakhsh Singh v. Gurdial Singh and Anr., AIR 1927 PC 230 .
This was followed by the Lahore High Court in Kirpa Singh
v. Ajaipal Singh and Ors. and the Bombay High Court in
Martand Pandharinath Chaudhari v. Radhabai Krishnarao
Deshmukh AAIR 1931 Bombay 97. The Madhya Pradesh High
Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore
Rawat AIR 1970 MP225 also followed the Privy Council
decision in Sardar Gurbakhsh Singh's case (supra). The
Allahabad High Court in Arjun Singh v. Virender Nath and
Anr. AIR1971All29 held that if a party abstains from entering
the witness box, it would give rise to an inference adverse
against him. Similarly, a Division Bench of the Punjab &
Haryana High Court in Bhagwan Dass v. Bhishan Chand and
Ors. AIR 1974Punj and Har 7, drew a presumption under
Section 114 of the Evidence Act against a party who did not
enter into the witness box."
72. I also find highly objectionable the reference to Rajiv Ranjan Sinha in
the last sub-paragraph of paragraph 22 of the impugned judgment. The
relevant extract from the said sub-paragraph reads as follows:
"The petitioner has alleged that she was beaten many a times
but again no supportive evidence in the form of any medical
treatment, no person having witnessed her beatings or through
letters from her father or even family friend Rajiv Ranjan Sinha
could be adduced by her to fortify her stand."
73. There was no occasion for the learned ADJ to bring in the name of
Mr. Rajiv Ranjan Sinha while discussing the aspect that the appellant had
not written a letter regarding her being beaten by the respondent. Rajiv
Ranjan Sinha was a stranger to the marriage, though he was a family friend
of the appellant from her father‟s side for six months prior to the marriage.
The appellant had disclosed that she was ashamed to talk about her misery to
others. Where, therefore, was the occasion for the appellant to inform Rajiv
Ranjan Sinha of her being beaten by the respondent? The observation made
by the learned ADJ is nothing short of a oblique insinuation, suggesting that
the appellant had such a close personal relationship with Rajiv Ranjan Sinha
that she could share her issues regarding her matrimonial life with him;
confide in him, and; seek the shoulder of Rajiv Ranjan Sinha for the
appellant to cry. The observations made by the learned ADJ are most
unfortunate, and demonstrate the perverse approach adopted by her while
dealing with this case.
74. Another important aspect which the learned ADJ has failed to
consider is that even though the respondent made grave and serious
allegations of the appellant being characterless, inasmuch as, she maintained
adulterous relationship with Rajiv Ranjan Sinha even after her marriage with
the respondent, the respondent did not lead any evidence to substantiate the
same. I have set out hereinabove the allegations made by the respondent,
not only in his written statement before the Trial Court, but also before this
Court in his reply to C.M. No.11012/2011. It is well-settled that such grave
and serious allegations - which impinge on the character of the opposite
party, if not substantiated, themselves constitute a mental cruelty. In this
regard, reference may be made to Sudhir Singhal Vs. Ms. Neeta Singhal,
85 (2000) DLT 419. In paragraph 15, this Court observed:
"15. In order to defend herself, the respondent could make
statement of facts against the imaginary and irresponsible
allegations and averments made in the petition. In a
matrimonial suit merely because there are allegations and
counter-allegations, a decree for divorce should not follow. But
if totally unfounded allegations and aspersions on character,
honour or reputation or status or health of the aggrieved party
are made in the written statement, they would constitute
matrimonial cruelty within the meaning of Sub-clause (i-a) of
Section 13(1) of the Hindu Marriage Act."
75. The submission of the respondent that after the dismissal of the
divorce petition the parties had cohabitated for a couple of months as
husband and wife is wholly unsubstantiated. These averments were made
by the respondent in his reply to C.M. No.11012/2011. Along with this
reply, the respondent sought to place on record photocopies of electronic
tickets of the flight that he and his friend Mr. Tambe allegedly took from
Mumbai to Delhi on 26.09.2010; of a few purported bills dated 13.10.2010
in respect of certain jewellery items; photocopy of invoices issued by
Koutons Retail India Ltd. on 13.10.2010; photographs showing both the
parties together in a temple/puja stated to be of 16.10.2010; photographs
showing celebration of birthday on 04.12.2010, wherein both the parties are
seen celebrating the occasion, and; photographs showing both the parties on
a beach and in a jungle area. Even though the respondent filed a rejoinder
emphatically denying the said allegations of the respondent, the respondent
chose not to seek leave of the Court to lead additional evidence under Order
XLI Rule 27 CPC. Pertinently, the originals of the documents, and
negatives of the photographs were not even placed on record. The cash
memos do not contain the particulars - in whose name the same were issued.
In these circumstances, it appears that the documents filed by the respondent
are only an attempt to create a prejudice against the appellant and raise a
doubt in the mind of the Court. The respondent has not ventured to seek
leave to lead additional evidence; lead his evidence, and face cross-
examination at the hands of the appellant. Consequently, the documents
cannot be looked into for any purpose. The statement made by the
respondent in Court, that he still loves the appellant and wants to protect and
take care of her and her interest is absolutely contrary to his conduct. On the
one hand, he projects himself to be an ideal husband, who is conscious of his
responsibilities towards his wife and loves his wife, while on the other hand,
he has not only made grave and serious unsubstantiated allegations
impinging on her character, but he has also not paid the maintenance, as
directed by the Trial Court under Section 24 of the HMA. It is not difficult
for this Court to see through the double face maintained by the respondent.
76. In the present case, as noticed above, even though the parties have
remained husband and wife for nearly 9 years, they have spent time together
as husband and wife for only two spells of two weeks and three weeks.
They separated on 04.01.2007, and have not lived together since. Thus,
there has been a long period of continuous separation which leads to the
conclusion that the matrimonial bond is beyond repair. Marriage has
become a fiction though supported by a legal tie. Refusing to severe that tie
does not serve the sanctity of marriage. On the contrary, it shows scant
regard for the feelings and emotions of the parties. This situation, by itself,
leads to mental cruelty (See Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC
511).
77. For all the aforesaid reasons, the impugned judgment is set aside and
the petition preferred by the petitioner/ appellant under Section 13(1)(ia) of
the HMA is allowed and decreed. A decree of divorce is passed dissolving
the marriage between the parties under Section 13(1)(ia) of the HMA. The
appellant shall be entitled to costs quantified at Rs.25,000/-.
(VIPIN SANGHI)
JUDGE
JULY 24, 2015
B.S. Rohella/ SR
