Usha vs Kishan Chand @ Lokesh
2016 Latest Caselaw 6184 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              RESERVED ON: 13.07.2016
%                                             PRONOUNCED ON: 22.09.2016


+                        M.A.T.APP. (F.C.) 133 OF 2015
        USHA                                                           ..... Appellant
                               Through: Mr. Hemant Jadav, Advocate.

                         Versus

        KISHAN CHAND @ LOKESH                             ..... Respondents
                      Through: Mr. Kapil Singhal, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE S. RAVINDRA BHAT
        HON'BLE MS. JUSTICE DEEPA SHARMA
        S.RAVINDRA BHAT, J.

1. This appeal under Section 19 of the Family Courts Act, 1984 is directed against the judgment dated 25.07.2015 passed by the Principal Judge, Family Courts, Karkardooma Court, whereby a husband‟s (respondent herein) petition for divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act"), was allowed and the marriage between the parties was dissolved.

2. The facts relevant to decide the case are that the marriage of the parties was solemnized on 08.05.2007 at Delhi. The wife (appellant herein) claims that her parents spent `3,00,000/- towards marriage expenses and that the dowry articles demanded by the husband were also given. The husband, however denies having demanded any dowry and also maintains that the marriage was a simple affair, held in a Dharamshala, namely, Shiv Mandir Dharamshala. The marriage was duly consummated, though no issue was

MAT APP.(F.C.)133/2015 Page 1 born out of the wedlock. It is not disputed that on 09.05.2007, the newlyweds started residing in the husband‟s brother‟s home. Owing to continuous disagreements, however, the parties shifted to a rented accommodation. The husband has a speaking disability and apparently stutters. He alleged- in the divorce proceeding- that the appellant used to constantly ridicule him for his speaking disability, even in the presence of outsiders and outside the privacy of their home.

3. Police complaints were filed by the husband before Farsh Bazar, and Seelampur, Police Stations on 30.06.2007 and on 31.08.2007 respectively in which he alleged that the appellant had been threatening to commit suicide. The husband alleged that on account of the appellant‟s quarrelsome nature, his family was constrained to disown him and his wife and they even issued a public notice in the Dainik Jagran Daily on 31.08.2007.It was stated that when the parties lived together in the rented accommodation, the relationship was acrimonious due to the wife‟s conduct. The acrimony was to such extent that it caused annoyance to the neighbours, disturbing the peace in the area to such an extent that the parties were forced to change their residence several times. The husband also alleged that the appellant on 20.09.2007 had left for her parental home and thereafter came back after 2- 3 days without the Stridhan articles or jewellery. The relationship between the parties further deteriorated and finally, on 05.09.2008, the appellant left the matrimonial home never to return.

4. The husband further alleged that the appellant had made numerous false complaints against him, his brothers and their wives and that even his employer was not spared. He submits that his services were terminated after the appellant created a scene at his workplace. His employer later on issued a letter to him indicating his willingness to re-employ him provided his wife gave a letter of assurance that she would not go to his workplace

MAT APP.(F.C.)133/2015 Page 2 and create or cause any sort of disturbances. The husband relied on these materials in the divorce proceedings; he also relied on the numerous police complaints made to the PCR (police control room) to say that without rhyme or reason, the wife freely resorted to such complaints to intimidate him.

5. The wife admitted to moving complaints against the respondent and his family members. She nevertheless denied having filed complaints against the husband‟s employer. Her defense in the divorce proceeding was that it was at the instance of the husband that his employer had issued the letter terminating him from employment and also later, the subsequent letter indicating willingness to re-employ the respondent. The wife also urged that it was she and not the respondent who was the victim, as it was she who had been subjected to physical and mental cruelty. The appellant also asserted that she had always been a duty-bound wife committed to her marriage with the respondent. Her further case is that the husband, with his family members tried every possible tactic to extract more money from her and thereafter, threw her out of the matrimonial home. The appellant also pointed out certain instances wherein she was subjected to harassment by the husband and his family in furtherance of the above said intention. She urged further that she was compelled to resort to filing police complaints after the physical and mental harassment became unbearable.

6. After the pleadings were complete, the following issues were framed by the learned trial judge on 24.03.2009:

1. Whether the respondent(appellant herein) has treated the petitioner(respondent herein) with cruelty after solemnization of marriage?

2. Whether the petitioner(respondent herein) is entitled to a decree of divorce on the grounds as prayed for?

3. Relief.

MAT APP.(F.C.)133/2015 Page 3

7. In support of his case, the husband examined himself as PW 1 and tendered documentary evidence, which inter-alia includes police complaints dated 31.08.2007 and 20.09.2007 filed before SHO, Farsh Bazar PS ; complaint dated 30.06.2007before SHO, Seelampur PS; the public notice published in Dainik Jagran Daily dated 31.08.2007 by which the respondent was disowned by his family; the respondent‟s employer‟s letters dated 20.06.2009 (intimating termination of his services) and 10.07.2009 (intimating willingness to re-employ him if his wife tendered a letter of assurance that she would not go to his workplace and cause any further disturbance). In the letter dated 20.06.2009, the employer has stated that the appellant had threatened to set fire to his shop. The respondent had also annexed the complaint dated 20.06.2009 filed by him before the Commissioner of Police, Delhi. The said documents and the subsequent enquiry report were produced before the court below by Head Constable Manoj who was examined as PW 3. The respondent also placed on record the complaint dated 12.09.2008, moved by the appellant before the Gandhi Nagar PS and the enquiry report prepared on the same day showing that it was false. Similarly three complaints made by the appellant on 02.10.2008 and the subsequent enquiry reports have also been produced by the respondent.

8. Upon examination in court, the husband reiterated his case that the appellant constantly ridiculed him about his speech disability and that she was uncivil to him and his family members and even went to the extent of threatening him and his family that she would commit suicide. She used to repeatedly file false and frivolous complaints against him and his family members before different police stations, as a result of which they would be summoned to the police stations and detained there for hours together only

MAT APP.(F.C.)133/2015 Page 4 to be let off subsequently when her complaints on enquiry were found to be false. The family members of the respondent were terrified and fed up with this contumacious conduct of the appellant and so his brother with whom he was staying with, asked him to vacate the house. So he was forced to shift his residence. He also deposed that his brother and his family members were so fed up with the conduct of his wife, that his brother who was like a father to him even went to the extent of disowning him and published a notice to that effect in Dainik Jagran Daily. He further deposed that the same story repeated itself in the couple‟s stay at various different rented accommodation, resulting in their shifting many times. He said that the wife used to pick quarrels with their neighbours and even their landlord. In the circumstances, the husband‟s case is that the conduct of his wife amounts to mental cruelty and resultantly he is entitled to a decree of divorce on that ground.

9. PW-2, the husband‟s brother supported his claim of mental cruelty and also stated on oath that he along with his wife, his two other brothers and their wives were mentally harassed by the appellant. He also deposed that the appellant‟s belligerent attitude compelled the husband‟s family to severe all ties with his brother, the husband.

10. The appellant on the other hand has presented an entirely different picture, showing herself as the victim of harassment and even alleged that the respondent and his family members tried to extract money from her, thereby denying the case of the respondent. She examined herself as RW 1 and placed on record OPD cards dated 25.04.2011 and 26.04.2011 issued by Hedgewar Hospital and several other medical documents of similar nature dated 21.04.2009, 30.05.2009 and 29.05.2009 to substantiate her case that she had to take medical treatment due to the physical harassment meted out to her. In these documents the cause of injuries is stated to be

MAT APP.(F.C.)133/2015 Page 5 „history of assault‟. She had also annexed photographs showing injuries alleged to have been inflicted upon her by the respondent and his family members.

11. The court below found several inconsistencies in the case put forward by the respondent-wife. One such inconsistency pointed out by the Family Court is regarding the custody of the appellant‟s jewellery, which she claims to be in the possession of her husband in the written statement as opposed to the averment in her affidavit that the same is with Manju - her husband‟s bhabi (sister-in-law). However, in her cross-examination it was elicited that the jewellery was in her „sasural‟ (matrimonial home). The court found that the case of the respondent regarding the alleged suicide threats by the appellant was quite probable and believable. On the other hand the case of the wife relating to demands for dowry made by the respondent and his family and harassment on account of her family‟s failure to meet the aforesaid demand has not been substantiated in any way. The court found that the first complaint marked- A, addressed to the SHO Seelampur was given by PW-l on 30.06.2007. In the complaint he has stated that his wife has been non-cooperative, abusive and has threatened to commit suicide. Similar is the complaint dated 31.08.2007, marked-B. The respondent has not given any explanation as to why such complaints were made against her by her husband. The case of the respondent that there was a demand of dowry from the side of her husband has not been proved or substantiated. Therefore the court below held that the complaints to the police within 6 months of the marriage by the respondent cannot be treated as a tactic adopted by the husband to escape or camouflage the demands for dowry and that if in fact there were such demands, the wife or her near relatives (who would have been intimated about it) would in all probability have lodged complaint(s) against the husband. In the absence of any such

MAT APP.(F.C.)133/2015 Page 6 complaints and the filing of complaints by the husband within 6 months of the marriage was held to probablise the case of the respondent- husband.

12. The learned Family Court judge also expressed doubts regarding the authenticity of the medical records produced by the wife along with some photographs showing injuries alleged to have been inflicted by the respondent. Although the court noted that the medical records contained the cause of injury as „history of assault‟, the dates shown in those documents could not be co-related to the plea of assault as neither the affidavit of evidence nor the written statement revealed the dates on which the appellant is alleged to have been assaulted. Also, it was found that the photographs submitted by the appellant were not accompanied by the negatives and hence the photographs were held to have not been proved. Consequently, the Family Court was of the opinion that the case or the defence put forward by the wife has not been proved by any cogent or reliable evidence.

13. The court below further noticed that the appellant- wife had urged several new claims at the evidence stage which do not find a place in her pleadings. She tried to make out a new case that her husband has illicit relations with Ms. Manju - his brother‟s wife and also that the respondent and his family members had forced her to undergo abortion to which she had to accede as she was threatened with divorce, in case she were to refuse. The court below rejected her contention of illicit relationship and held that making such wild allegations adversely affect the integrity of a person and that it amounts to character assassination. In the Court‟s opinion it is to be construed as nothing short of cruelty since the same leaves an indelible mark on the psyche of a person.

14. In holding that the said allegation amounted to mental cruelty, the learned judge relied on the following cases - viz., Jai Dayal Vs Shakuntala Devi,

MAT APP.(F.C.)133/2015 Page 7 AIR 2004 Del 31; Dr. N.G Dastane Vs Mrs. S. Dastane, AIR 1975 SC 1534; Sobha Rani Vs Madhukar Reddi, (1988) 1 SCC 105; V. Bhagat v D. Bhagat, (1994) 1 SCC 337; Vijay Kumar Ram Chander Bhate Vs Neeta Vijay Kumar 2003 (6) SCC 334.

15. The appellant wife urges that the trial court fell into error in ignoring available materials and arriving at findings that were not warranted or justified. Learned counsel submitted that once the wife showed that the husband and his relatives had physically abused her, the onus was upon him to controvert. Reliance was placed on the police complaints to say that the wife was subjected to constant harassment and demands for dowry were made. Arguing that the impugned judgment requires to be set aside and the divorce decree interfered with, learned counsel submitted that after the wife had placed credible material in the form of photographs, medical records and copies of complaints, the husband had to discharge the onus of disproving cruelty. It was submitted that the trial court fell into error in overlooking this salient aspect. Counsel also stated that given the wife‟s condition she could not be expected to follow up on police complaints lodged by her; her inability to do anything beyond lodging the complaints had to be factored, but was not, by the court below.

Analysis and findings

16. This court now proposes to proceed to decide whether the facts alleged by the respondent-husband would amount to cruelty as contemplated under Section 13(1) (ia) of the Hindu Marriage Act, 1955. That provision envisages both physical and mental cruelty, the case on hand relates to mental cruelty. Here it would be pertinent to refer to the decision of the Hon‟ble Supreme Court in S. Hanumantha Rao Vs S. Ramani AIR 1999 SC 1318 wherein mental cruelty was broadly defined as that conduct which

MAT APP.(F.C.)133/2015 Page 8 inflicts upon the other party such mental pain and suffering as would make it impossible for the latter to live with the other. Mental cruelty must be of such nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. As Lord Denning had stated in Sheldon vs. Sheldon (1996) 2 AII ER 257 -

"The categories of cruelty are not closed. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings, there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful realm of cruelty."

In Savitri Pandey v. Prem Chandra Pandey, 2002 (2) SCC 73 the Supreme Court outlined what could be cruelty in matrimonial parlance:

"Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent."

17. In the present appeal, the wife has not been able to persuade that the husband failed to prove cruelty. In addition she made a serious allegation

MAT APP.(F.C.)133/2015 Page 9 that her husband has illicit relations with his sister-in-law. However, this contention did not find a place in her pleadings. This case was put forward at the stage of evidence, - as an afterthought. Making such unsubstantiated contentions would itself constitute mental cruelty. False charges, particularly relating to infidelity, amount to cruelty. The Supreme Court in Vishwanath Agarwal v Sarla Agarwal AIR 2012 SC 2586 has pointed out that baseless allegations of infidelity of the spouse causes mental agony and anguish and the same may be equated to mental cruelty within the meaning of Section 13(1) (ia).

18. This court is in agreement with a similar case decided by the Tripura High Court, viz., in Jayanti Deb (Das) v Manas Kumar Das, AIR 2015 Tripura 25, where the wife had alleged that her husband was in an adulterous relationship with his elder brother‟s wife. The appellant wife had challenged the order of the Family Court, Agartala, and West Tripura allowing the petition for divorce filed by the husband on the ground of mental cruelty. The Tripura High Court dismissing the wife‟s appeal held that -

"...cruel treatment by one of the spouse to the other not amounting to physical cruelty is actually mental cruelty. The wife could not prove her allegation regarding the extra marital relationship of the husband with the wife of his elder brother. Such an allegation is serious in nature particularly, when in our society wife of elder brother is called as Boudi/Bhabhi and treated like mother. The allegation of adultery made by the wife appellant and not proved is nothing but mental cruelty."

19. Likewise, her further case that she was forced by her husband and family to undergo abortion is also unsubstantiated and without any evidence. Apart from her testimony there is no evidence adduced by her to substantiate any of her contentions either in the written statement or the new contentions taken up by her at the evidence stage. The wild and unsubstantiated

MAT APP.(F.C.)133/2015 Page 10 contention of adultery made against the husband, amounts to a strong element proving mental cruelty.

20. In addition, the materials on record show that the appellant had made several PCR and police complaints. Each of them led to a closure report. These complaints caused embarrassment not only to the husband, but members of his family - so much so that the couple had to shift out of the brother‟s residence and were compelled to set up a separate house. Even there, the neighbours found the bickering to be unbearable. These facts were deposed not only by the husband, but also other members of his family. On the other hand, to prove or substantiate her allegations, the wife did not find support from any member of her family. No one deposed to say that the husband neglected the wife or had treated her cruelly. Oddly, no witness was produced by the wife to establish her allegations. She also did not cross examine the husband or his witnesses on several vital aspects. In the light of these circumstances, the husband‟s version, that the wife was disgruntled and started ridiculing him for his speech disability from the beginning of the matrimonial relationship appears to be plausible. Now, such behavior - i.e. ridiculing anyone- much less one‟s spouse or mocking him or her- is undoubtedly cruel behavior. It undermines the dignity and self confidence of the individual. If one marries with full knowledge of one‟s spouse‟s disabilities, it is not expected that such condition should become a matter of ridicule or black humor.

21. The further case of the appellant that the court below did not entertain or consider her application for interim maintenance is incorrect. Ample opportunity was given to the appellant for advancing arguments on the aforesaid petition. The court below had also offered to provide her with legal aid. However, she refused it. Therefore, the court below was justified in dismissing the application for interim maintenance.

MAT APP.(F.C.)133/2015 Page 11

22. In the light of the foregoing discussion, having regard to the entirety of the record, the evidence and the oral deposition, this court finds no infirmity in the findings of the court below. The appeal is without merits and consequently, dismissed. No costs.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) SEPTEMBER 22, 2016

MAT APP.(F.C.)133/2015 Page 12