Santosh vs Hori Lal
2017 Latest Caselaw 3907 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                   Decided on: 04.08.2017
+      MAT.APP.(F.C.) 95/2017, CM No. 19921/2017, CM No. 19923/2017


       SANTOSH                                        ..... Appellant
                          Through:    Mr. Gaurav Choudhary, Advocate
                                      along with Mr. Jaswinder Singh,
                                      Advocate along with appellant in
                                      person.

                          versus

       HORI LAL                                              ..... Respondent

                          Through:    None.

       CORAM:
       HON'BLE MR. JUSTICE HIMA KOHLI
       HON'BLE MS. JUSTICE DEEPA SHARMA

HON'BLE MS. JUSTICE DEEPA SHARMA

1. Vide the present appeal, the appellant has challenged the order dated

31.03.2017 passed by Principal Judge (Family Court), Tis Hazari, Delhi

whereby her marriage with the respondent was dissolved under Section 13

(1) (ia) & (ib) of Hindu Marriage Act, 1955 (hereinafter referred to as

"HMA").

2. As per the admitted facts, the marriage between the appellant and the

respondent was solemnized in Delhi on 29.06.1993, according to the Hindu

MAT.APP.(F.C) 95/2017 Page 1 rites and ceremonies. The marriage was consummated and two children,

one female and one male child were born from out of this wedlock. The

respondent has been working with the Border Road Organization and at all

times, has remained posted at different border areas of the country.

3. The petition for divorce was filed by the respondent (hereinafter

referred to as "respondent/husband"). The case of the husband was that the

marriage was very simple and after the marriage, he took the appellant to

the matrimonial home at Village Bhopal Garhi Post Kurhar Distt, Etah, UP

and stayed there for about 40 days. When he left for his duty, he left the

appellant at her parental home on her request. After some time, the

appellant joined him at his place of posting at Arunachal Pradesh where

they stayed happily. She became pregnant and insisted upon the

respondent/husband that she will deliver the first child at her parental home

at Delhi and so, he brought her to Delhi and left her at her parental home.

A female child was born on 29.03.1994. After about two months i.e. in

May 1994, he took the appellant to his place of posting i.e. Arunachal

Pradesh along with the minor daughter. The second child was born on

04.05.2002.

MAT.APP.(F.C) 95/2017 Page 2

4. The contention of the husband was that the appellant was in the habit

of quarrelling with him on petty issues without any cause and reason and

had even refused to prepare food for him and do the household chores. She

also humiliated him in the presence of his friends on several occasions by

refusing to serve them tea. The appellant never wanted to stay with him or

his parents at the village and always used to force him to drop her at her

parental home; she did not have any love and affection for him and his

parents; that the appellant had also pressurised him to leave the job and

settle down in Delhi; he bought a land in Burari and constructed two storey

house from his savings but the appellant preferred staying in her parental

home at Gulabi Bagh, Delhi and used to come to their newly constructed

house once a week. The husband had all along supported the appellant and

their children financially as well as morally. When the construction of the

house was completed, the appellant had refused to live with him at the

place of his posting. She also forced her mother-in-law to leave the house

who thereafter started living in her native village. She used to say that

"yeh log hamare status kay neie hain."

5. The husband had referred to the incidents that took place in February

2006, which ultimately culminated in their separation. He alleged that on

MAT.APP.(F.C) 95/2017 Page 3 26.02.2006, he had informed the appellant, on telephone, at around 8 p.m.

that his father was unwell and that he was taking leave to visit him and

asked her to accompany him to the village. However, once he reached

Delhi, the appellant refused to accompany him to the village. She also

refused to join him at his place of posting along with the children. She and

her parents beat him on his visit to her parental home. He visited his house

at Burari on 04.03.2006 where the appellant and her parents quarrelled with

him and registered a false case against him under Section 107/150 of CrPC.

He left for his village on 05.03.2006 and returned to Delhi on 07.03.2006

and went to his house at Burari and found that the appellant had removed

all the household goods and had filed a false complaint under Section

498A/406/34 of IPC before Crime against Women Cell after 13 years of

their marriage, alleging inter alia that he had demanded dowry of Rs. 35.00

lakhs. The respondent/husband was arrested in the FIR No. 61/2006 on

04.04.2006 and remained in judicial custody for about 20 days. With the

help of police, the appellant removed the remaining articles from his house

at Burari. She also removed all the jewellery lying in the locker at State

Bank of India, Pratap Nagar, Delhi on 06.03.2006. She also filed several

civil and criminal cases against him and his relatives on false and frivolous

MAT.APP.(F.C) 95/2017 Page 4 grounds, just to harass and torture the husband. The appellant did all this

with the intention of extracting more money from him and his relatives.

Details in this respect have been furnished by the husband in para No. 15 of

his petition. It was also averred that she had filed various complaints

against the husband in different departments and authorities, which on

investigation, were found to be false and baseless and that she had been

making defamatory complaints against him and his family members.

6. On these facts, the respondent/husband had alleged that he had

suffered severe mental agony, tension, harassment and distress and that the

behaviour of the appellant had caused him great anguish and amounted to

cruelty. He had alleged that the appellant had also deserted him since she

had refused to live with him. He had also averred that they had been living

separately since March 2006 and it was not possible for him to continue

living with her since there was a danger to his life and limb.

7. The suit was contested by the appellant who filed her written

statement wherein she had denied all the averments in the plaint, being

false. She had further averred that she was forced to withdraw the FIR and

other proceedings filed by her under compelling circumstances and since

she did not want to take divorce from the husband, she did not file any suit

MAT.APP.(F.C) 95/2017 Page 5 for divorce and that the respondent was taking undue advantage of his own

wrong doings and that of his parents, sisters and brother-in-law. Her

contention was that it was she, who had been treated with utmost cruelty by

the husband and his family members. Her husband failed to maintain her

and their two children and they were at the mercy of her father for day-to-

day necessities and their school fees was also paid by her father. As per her

version, their marriage was solemnised with great pomp and show and her

parents had spent lakhs of rupees on their marriage and dowry articles, gifts

and cash was given in the marriage which did not satisfy the husband and

his family members who kept on raising demands and started harassing and

treating her with cruelty, forcing her to fulfil their demands for brining

additional dowry and cash amounts.

8. The appellant claimed that the respondent/husband demanded a

Santro car on 28.02.2006 which her parents failed to provide. This refusal

enraged the husband. He and his brother asked her to sign on certain blank

papers and on her refusal to do so, and in view of the inability of her

parents to provide a new Santro car, the respondent/husband got so

infuriated that he did not allow her to enter the house. She was beaten by

him and his other relatives and sustained injuries. She admitted that she

MAT.APP.(F.C) 95/2017 Page 6 had filed a complaint under Section 107/150 of the CrPC against him and

his family members on 04.03.2006. It was also contended that she was

forced to live in Delhi with her parents because husband refused to keep

her at the place of his posting for the reason best known to him.

9. It was further averred by the appellant that she had been fulfilling all

the obligations as a devoted wife and had always remained faithful to the

respondent; she was always ready and willing to accompany the

respondent/husband to his native village to look after her ailing father-in-

law but he had refused to take her along with him to the village. On

04.03.2006 when she was beaten up, she had been medically examined. It

was contended that it was her father who had purchased plot no. 55, Block

A, Gali No. 8/1, Kaushik Enclave Swaroop Nagar Road, Burari, Delhi

measuring 100 square yards in her name and constructed double storeyed

house over it; that the husband had fraudulently procured her signatures on

a General Power of Attorney executed in his favour and sold the house first

to his brother, Sh. Bhopal Singh on 08.03.2006 and thereafter, to Mr. Satish

Sisodia for a sum of Rs. 6,25,000/- and mis-appropriated the sale proceeds.

The appellant urged that the respondent/husband could not be allowed to

MAT.APP.(F.C) 95/2017 Page 7 take advantage of his own wrong and thus, was not entitled for a decree of

divorce.

10. On the basis of the pleadings of the parties, on 26.08.2009, the

learned Trial Court had framed the following issues:-

"(1) Whether the respondent has treated the petitioner with cruelty? (OPP)

(2) Whether the respondent has deserted the petitioner for a period of more than two years before the filing of the present petition? (OPP)

(3) Relief."

11. Both the parties had led their evidence. The respondent/husband had

examined five witnesses in support of his case. In his statement, the

petitioner/husband proved on record, the complaints filed by the appellant

against him and marked as A to E. He also summoned a witness from the

bank to prove that locker bearing no. 192 in the joint name of the parties

was lastly operated by the appellant on 06.03.2006. The said record was

exhibited by the witness as Ex.PW 2/1 to Ex. PW 2/5. The appellant,

however, examined herself alone in support of her case. After hearing the

parties at length and considering the evidences on record, the learned Trial

Court reached the conclusion that the appellant had treated the respondent

MAT.APP.(F.C) 95/2017 Page 8 with cruelty and that she had deserted him without any just cause and

resultantly, dissolved their marriage. Hence the present appeal.

12. The appellant has challenged the impugned order on the grounds that

the learned Family Court has not properly appreciated the evidence on

record and did not take into consideration the torture and the harassment

she was subjected to; that reliance on the evidence of the respondent and

rejection of the testimony of the appellant is unfounded; that the learned

Family Court failed to consider the contradictions in the testimony of the

respondent and the fact that the husband has not been able to produce any

corroborative evidence to prove the allegations levelled by him against the

appellant; that the Family Court failed to take into account the fact that it

was the respondent who had treated the appellant with cruelty and,

therefore, he cannot be permitted to take advantage of his own wrong in

view of the provisions of Section 23 of HMA. It was also contended by Mr.

Chaudhary, learned counsel for the appellant that the learned Family Court

has wrongly granted divorce on the ground that the marriage between them

has broken down because no such ground is available for divorce under the

HMA. It is therefore prayed that the impugned judgment being illegal,

perverse and contrary to law, is liable to be set aside.

MAT.APP.(F.C) 95/2017 Page 9

13. We have heard the arguments addressed by learned counsel for the

appellant and gone through the LCR which includes the pleadings and

evidence of the parties.

14. The first contention of the appellant is that the learned Family Court

has given undue weightage to the evidence of the respondent and has

discarded the evidence of the appellant. However, this contention has no

merit. On the contrary, the evidence on record (including that of the

appellant) was duly considered and distinguished and elaborately discussed

in the impugned judgment and only thereafter the conclusion was drawn.

Record shows that the appellant had examined herself alone in support of

her pleas but here is no corroboration to her testimony. Several

contradictions in her testimony have been discussed in the impugned

judgment. Even otherwise, the burden to prove that the

respondent/husband was subjected to cruelty by the appellant, was upon

him and it was for him to discharge the same by leading cogent evidence.

15. The settled proposition of law in civil proceedings is that the

principle of proof of a fact is established on a preponderance of possibility

and the respondent/husband is not required to prove his case beyond a

reasonable doubt. If the evidences on record points out to the existence of

MAT.APP.(F.C) 95/2017 Page 10 a particular fact, then the said fact can be accepted as having been proved.

We may note that the expression "cruelty" has not been defined under the

HMA. Cruelty can be mental or physical. It is easy for a party to prove

physical cruelty, but mental cruelty depends on various factors.

16. In Samar Ghosh vs. Jaya Ghosh reported at (2007) 4 SCC 511 while

dealing with the concept of mental cruelty, the Apex Court has observed as

under:

"99. The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound; therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances...."

(emphasis supplied)

MAT.APP.(F.C) 95/2017 Page 11

17. Further, in Ravi Kumar vs. Julmidevi reported at (2010) 4 SCC 476,

the Supreme Court held that cruelty is to be judged from the behavior,

taking into account the entire facts and circumstances of the case and

observed that:-

"20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety--it may be subtle or even brutal and may be by gestures and words..."

(emphasis supplied)

18. Therefore, there is no mathematical formula to assess cruelty. If the

consistent behaviour of a spouse is of such a nature as to causes pain,

discomfort or it brings disrespect or disrepute to the other spouse, such

behavior would constitute cruelty. Trust, mutual respect, understanding and

commitment sustain a marriage. When two persons live together in

matrimony, it is expected that they will be tolerant towards each other's

attitude, behaviours, moods etc. and not be over sensitive towards innocent

and natural behaviour/attitude or stray mood swings of the spouse.

Spouses are expected to be supportive of each others' needs and

MAT.APP.(F.C) 95/2017 Page 12 requirements which includes extending due respect to the family members

of the spouse.

19. While appreciating the evidence in such matters, in Deb Narayan

Halder vs. Anushree Halder reported at (2003) 11 SCC 303, the Supreme

Court held that Courts should rely on evidence, which is contemporaneous

and observed as under:-

20.....In cases where there is a dispute between husband and wife it is very difficult to unravel the true reason for the dispute. After separation when the relationship turns sour, all sorts of allegations and counter allegations are made against each other. Evidence of contemporaneous nature therefore plays an important role in such cases as it may reveal the thinking and attitude of the parties towards each other at the relevant time. Such evidence is usually found in the form of letters written by the parties to each other or to their friends and relatives or recorded in any other document of contemporaneous nature. If really the respondent was subjected to cruelty and harassment in the manner alleged by her, we have no doubt she would have written about such treatment to her friends and relatives with whom she may have corresponded..."

(emphasis supplied)

20. The evidence brought on record clearly reveals that the parties got

married on 29.06.1993 and from the period from 1993 to 2001, the

appellant had been staying with the husband at the place of his posting and

she was visiting her parents in Delhi during this period. The husband was

employed in the Border Road Organization and was posted to different

MAT.APP.(F.C) 95/2017 Page 13 places outside Delhi including Arunachal Pradesh. The appellant had

stayed with him at those places but she had not written any letter even to

her parents, complaining about the misbehaviour of the respondent. There

appears no dispute between them during their entire stay at the places of

posting, as no complaint of any nature had been filed by the appellant

before any authority in this regard. It is also evident that the appellant did

not produce any document which could suggest that she had any complaint

of any nature against the respondent during her stay with him.

21. During this entire period, till the filing of the complaint of demand of

dowry under Section 498 A IPC, no complaint of any nature has been

placed on record by the appellant against the respondent. The evidence

also shows that the appellant started living in the Burari house since the

year 2001 and during this period, the respondent had been visiting her in

that house. The appellant has also failed to prove that it was her father who

purchased the property in her name. No document has been produced on

record by the appellant to prove that she was the registered owner of the

property and it was sold by the respondent by fraudulently obtaining her

signatures on a Power of Attorney. No document was also produced on

record to prove that the construction undertaken over the plot was raised by

MAT.APP.(F.C) 95/2017 Page 14 her father. During the existence of a marriage of about 13 years, no

complaint of demand of dowry was ever lodged by the appellant against the

respondent or his family members.

22. Apparently, the dispute between the parties arose sometime in March

2006. The appellant has not disputed that in March 2006, the respondent

wanted to visit his ailing father at the village and he did visit him. While

respondent/husband contends that it was the appellant who had refused to

accompany him, the appellant took the plea that he did not take her along,

which she had failed to substantiate by leading any evidence. The

appellant has not produced any substantive evidence in support of her

contention that she had been visiting her in-laws in the village. On the

contrary, the evidence on record clearly shows that whenever she was in

Delhi, she used to reside with her parents. Although she has contended that

the respondent was not providing her money towards her maintenance and

that of their children and it was her father who was bearing all the expenses

during her stay in the Burari house, she has not produced any evidence to

prove that the school fees of the children was being paid by her father. In

fact, she has failed to examine her father. It is also a fact that the appellant

never made any complaint to anyone including the respondent's department

MAT.APP.(F.C) 95/2017 Page 15 to the effect that he was not giving them any money for their subsistence,

nor had she filed any case claiming maintenance from him. There is no

contemporaneous evidence on record which can even remotely suggest that

the respondent had demanded dowry and that he and his family members

had beaten the appellant or that he was not taking care of her and children

and was not providing financial support to them.

23. The other plea of the appellant is that her husband and his family

members used to demand dowry and harass her and had demanded a Santro

car on 04.06.2006 and, on refusal, beaten her and turned her out of the

house, thus compelling her to file a complaint under Section 498A. It turns

out that the husband was discharged in the said case under Section 498A

IPC, which only goes to show that there was no substance in the allegations

made by the appellant in her complaint under Section 498A IPC. She has

also contended that the respondent had forced her to abort their child

against her wishes, but has failed to produce any evidence on record to

prove the said allegations. During the cross-examination of Sh. Bhopal

Singh (PW-4), the respondent's witness, a suggestion was made that the

respondent had got married to another women but it remained a mere

suggestion, without any proof. The appellant has also admitted in her

MAT.APP.(F.C) 95/2017 Page 16 testimony that the respondent had visited her at her parental home at Gulabi

Bagh, Delhi on 28.02.2006 and that after 28.02.2006, she had never visited

Etah, UP, where her in-laws reside.

24. On the other hand, the respondent has produced on record the

evidence to demonstrate that the appellant had removed all the items lying

in the locker held in their joint names, without obtaining his consent. The

witness from the Bank, PW-2 had duly proved the fact that the locker was

operated lastly by the appellant on 06.03.2006. This fact clearly shows that

after the alleged incident of 04.03.2006, the appellant had taken out all the

articles lying in the locker without the consent of her husband. The

respondent has also examined PW-3 who brought the records from the

Border Roads Organisation which proves the fact appellant had filed that

several complaints making various allegations against the respondent not

only in his office, but also to several other authorities with a copy marked

to his office. Enquires were made into the allegations in the complaints, but

no substance was found therein and ultimately, the respondent was

exonerated. The husband had taken a plea that this act of the wife had

caused him grave distress, agony and had also lowered his reputation in the

department, among his friends and colleagues and in the society.

MAT.APP.(F.C) 95/2017 Page 17

25. In the case of G.V.N. Kameswara Rao vs. G. Jabilli reported at

(2002) 2 SSC 296, the Supreme Court had observed that false police

complaints would result in mental cruelty as it leads to loss of reputation and

standing in the society at the instance of one's spouse. The act of leveling of

unsubstantiated charges of adultery against the husband not only during the

stay of the spouses together, but also during the divorce proceedings was

treated as an act of cruelty on the part of the wife. In R. Balasubramanian

vs. Vijaylakshmi Balsubramanian (SMT) reported at (1999) 7 SCC 311,

the Supreme Court held that an unfounded allegation of adultery is a serious

allegation amounting to cruel conduct, and found that these factors

cumulatively proved cruelty on the part of the appellant therein for entitling

the husband to dissolution of the marriage.

26. In the present case, the evidence clearly establishes the facts that the

appellant had filed a false criminal complaint under Section 498 A of IPC,

and Court had discharged the respondent. On her complaints, the department

had also conducted enquiry against the respondent and thereafter,

exonerated him, finding no truth in such complaints. Further, during the

trial, the appellant had taken a stand that her husband had got remarried to

MAT.APP.(F.C) 95/2017 Page 18 another woman by giving an suggestion of this nature to PW-4, but could

not prove it.

27. In the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar

Bhate reported as (2003) 6 SCC 334, the Supreme Court has settled the

proposition of law by observing as under:-

"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that disgusting levelling accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court.

We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her

MAT.APP.(F.C) 95/2017 Page 19 like that and rendered the maintenance of matrimonial home impossible." (emphasis added)

28. Again, in a recent decision in the case of Narendra vs. K. Meena

reported as AIR 2016 SC 4599, applying the ratio of its earlier decision in

the case of Vijaykumar (supra) the Supreme Court has reiterated that

unsubstantiated allegations if levelled, amounts to mental cruelty and is a

ground for divorce under Section 13(1)(i-a) of the Act. In a very recent

judgment in the case of Raj Talreja vs. Kavita Talreja reported as AIR

2017 SC 2138, relying on the ratio of an earlier decision in the case of Ravi

Kumar (supra), the Supreme Court has held that "reckless, defamatory and

false accusations against her husband, his family members and colleagues,

which would definitely have the effect of lowering his reputation in the eyes

of peers" amounting to cruelty. In the case titled Santosh Sahay vs.

Hanuman Sahay reported as 2016 IX AD (Delhi) 1, a Division Bench of

this Court has held that false character assassination and allegations of such

a nature made by a spouse amounts to mental cruelty and the wronged

spouse is entitled to seek divorce on that ground.

29. To sum up, the allegations leveled by the appellant which she failed

to substantiate even on the yardstick of preponderance of evidence, are of

such a nature that would have lowered the image of the respondent in the

MAT.APP.(F.C) 95/2017 Page 20 eyes of his superiors, subordinates and peers and this act would certainly

constitute cruelty. It is an undisputed position that the parties have been

living separately since 04.03.2006 and in all this duration, the appellant

seems to have made no effort to join the company of the respondent.

Rather, her act of 06.03.2006 of cleaning out the joint locker of the parties

shows an animus descendi.

30. In view of the above discussion, we are of the opinion that the

findings of the learned Trial Court are based on the evidence on record.

The argument of learned counsel for the appellant that the learned Family

Court had given more weightage to the evidence of the respondent is turned

down as baseless. We find no reason to unsettle the impugned judgment

which is accordingly upheld. As a result, the appeal is dismissed in limine

with no order as to costs.

DEEPA SHARMA (JUDGE)

HIMA KOHLI (JUDGE)

AUGUST 04, 2017/ss

MAT.APP.(F.C) 95/2017 Page 21