Rekha Rawat vs Yaspal Singh Rawat
2017 Latest Caselaw 4268 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Decided on: 21.08.2017
+      MAT.APP.(F.C.) 132/2015 & CM No. 24471/2015
       REKHA RAWAT                                 ..... Appellant
                       Through: Mr. Sujeet Kumar Mishra, Advocate.
                       versus
       YASPAL SINGH RAWAT                            ..... Respondent

Through: Ms. Riz Mathew, Advocate.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI HON'BLE MS. JUSTICE DEEPA SHARMA

HON'BLE MS. JUSTICE DEEPA SHARMA

1. The appellant/wife has challenged the ex-parte judgment dated

26.05.2011, whereby her marriage with the respondent was dissolved on a

petition filed by her husband under Section 13(1) (ia) of Hindu Marriage

Act, 1955 (hereinafter referred to as " The HMA"). The appellant has also

challenged the order dated 17.07.2015 whereby an application moved by

her under Order IX Rule 13 (read with Section 151) of the Civil Procedure

Code (CPC) for setting aside the ex-parte judgment dated 26.05.2011, was

dismissed by the Family Court.

2. During the course of arguments, learned counsel for the appellant

had stated that he did not wish to press the appeal against the order dated

17.07.2015 passed by the learned Family Court dismissing the application

filed by the appellant under Order IX Rule 13 CPC and wished to confine

MAT.APP.(F.C) 132/2015 Page 1 the relief in the present appeal to the findings returned in the ex-parte

judgment dated 26.05.2011, allowing the petition filed by the

respondent/husband for seeking divorce from the appellant on the grounds

of cruelty.

3. The impugned order dated 26.05.2011 has been challenged by the

appellant on the ground that there was no specific allegation of cruelty

levelled against her and all the allegations in the petition were of a general

nature, and therefore, the Family Court has erred in passing the impugned

judgment in favour of the respondent.

4. The admitted facts of the case are that the marriage between the

parties was solemnized according to the Hindu customs, rites and religious

ceremonies on 19.02.1999 and one female child, namely Swati was born

out of their wedlock on 08.08.2002.

5. The respondent/husband has averred in the petition that the

appellant/wife was suffering from a mental disease called schizophrenia

and that her behaviour was cruel not only towards him and his family

members, but also towards their child. She was in the habit of leaving the

matrimonial home at the drop of a hat and going to her father's place who

was staying nearby. The appellant had done so in May, 2003, without any

MAT.APP.(F.C) 132/2015 Page 2 intimation to the respondent. On her returning from her parental house

around September, 2006, her behaviour had become far more cruel towards

the respondent and their child and on getting infuriated, she would treat the

child savagely. She used to beat the child frequently and dangle her in a

dangerous position. It has been averred that due to this behaviour, the

respondent/husband was constrained to make a complaint to the DCP,

South-West District and Sr. P.P.S. to Spl. Secy. (IS), MHA vide letters

dated 17.12.2007 and the said letter was also sent to the SHO Dabri Police

Station, South West District, New Delhi on 20.12.2017. The respondent

had informed the authorities of the appellant's erractic and abnormal

behaviour and the danger posed to the life of the child. On 30.01.2008, the

respondent had also made a complaint to the Member Secretary, National

Commission for Protection of Child Rights, asking that action be taken to

prevent the abuse of the child at the hands of the appellant.

6. In the last week of March, 2008, when the respondent returned from

his office, he found the house locked from inside. On peeping through

window, he saw that the appellant was mercilessly beating the child and

had dangled her in the air. Petrified, he had immediately informed the

police at 100 number. After some time, the appellant had opened the door

MAT.APP.(F.C) 132/2015 Page 3 and allowed the respondent to enter the house. He was threatened by the

appellant and her parents that they would implicate him and his family

members in a false dowry case. The respondent has alleged that he was

constantly abused by the appellant and on 01.10.2007, she had physically

assaulted him. Suspecting that he was having an extra marital affair, she

used to spy upon him and would frequently call up at his workplace to keep

a constant tab on him and his whereabouts. The constant abusive fights

picked up by the appellant ever so often and use of filthy language by her

was causing immense mental agony and suffering to the respondent and

had put him under grave stress. The appellant also forced his parents to

leave the house on 21.07.2007, and they had no option but to return to their

native place at Uttrakhand. When things reached a breaking point, the

respondent was forced to file a petition for dissolution of marriage under

Section 13 (1) (ia) & (iii) of the Hindu Marriage Act.

7. The appellant had filed her written statement in opposition to the

petition and denied all the allegations levelled against her as incorrect.

8. After the issues were framed on 27.04.2009, the parties were directed

to lead evidences. The respondent/ husband examined himself as PW-1

and he was duly cross-examined by the appellant/wife. Thereafter she

MAT.APP.(F.C) 132/2015 Page 4 abruptly stopped attending the court proceedings and did not cross-examine

the other witnesses of the husband/respondent. As a result, the testimony of

the respondent's father (PW-2) remained uncontradicted. Subsequently, the

appellant was proceeded against ex-parte.

9. After elaborately discussing all the evidence brought on record, the

learned Family Court passed a decree of divorce in favour of the

respondent, under Section 13 (1) (ia) of the HMA. The impugned order

records that counsel for the respondent/husband, on instructions, had not

pressed the second ground for divorce taken under Section 13 (1) (iii) of

the HMA and had confined the case to the ground of cruelty alone. It is this

judgment that has been impugned by the appellant/wife in the present

appeal.

10. Learned counsel for the appellant had cited the judgments in Kollam

Chandra Sekhar vs. Kollam Padma Latha, (2014) 1 SSC 225 and Ram

Narain Gupta vs. Rameshwari Gupta, (1998) 4 SCC 247 to urge that

having invoked the provisions of Section 13 (1) (iii) of the Act, the

respondent was under an obligation to prove that the appellant was of

unsound mind or intermittently suffering from schizophrenia and that the

disease was of such a nature that he could not reasonable be expected to

MAT.APP.(F.C) 132/2015 Page 5 live with the appellant. He had argued that in the absence of any

substantive evidence placed on record with respect to the appellant's

mental illness, the learned Family Court had gravely erred in granting the

divorce.

11. Reliance was placed on the decision of a Division Bench of this

Court in the case of Shri Jagdish v. Smt. Monika in Mat. App. (FC)

40/2014 decided on 02.04.2014, to contend that the respondent was

required to point out each and every instance which could be construed as

cruelty on the part of the appellant for succeeding in the case, but he had

failed to do so. It was next argued that even in cases where a party is

proceeded against ex-parte, the court is still required to assess the evidence

and judge if a case is made out or not and a decree could not have been

passed against the appellant merely because the evidence has remained

unrebutted.

12. We have given our thoughtful consideration to the arguments

addressed by learned counsels for the parties and have carefully examined

the trial court record.

13. We may commence by observing that the findings in the case of

Kollam (supra) and Ram Narain (supra) have no application to this case

MAT.APP.(F.C) 132/2015 Page 6 for the reason that initially, the respondent had invoked the provisions of

Section 13 (1) (ia) and (iii) of the HMA, but later on, Section 13(1) (iii)

was not pressed by him and the Family Court has not granted divorce on

the said ground. Rather, the marriage has been dissolved on the ground of

cruelty committed by the appellant/wife qua the respondent/husband.

14. The other argument advanced by learned counsel for the

appellant/wife is that the allegations levelled by the respondent in the plaint

are vague and of a general nature and no specific incident of cruelty has

been pleaded by him. Hence, dissolution of marriage on the ground of

cruelty, is bad in law and the impugned judgment is not sustainable on the

said ground.

15. We find no force in the above argument in the light of the facts that

have been pleaded by the respondent/husband and reiterated in his

deposition. The pleadings contain specific instances of cruelty on the part

of the appellant/wife. It has been pleaded that the behaviour of the wife

towards the respondent, their child and his parents was abusive and

quarrelsome and on 21.07.2007, fed up by her persistent insults, his parents

were compelled to leave the matrimonial home. The respondent has

proved on record the letters written by him to the police and the National

MAT.APP.(F.C) 132/2015 Page 7 Commission for Protection of Child Rights, elaborating inter alia the cruel

behaviour of the appellant towards him and their child. The respondent has

categorically pleaded that his wife used to beat the child mercilessly and

has mentioned a specific instance when he had to call the police at 100

number to save the child from the cruel behaviour of the appellant.

16. The argument that cruelty meted out to the child cannot be treated as

cruelty to the husband, for him to seek dissolution of marriage, is found to

be devoid of merits. When the child is being reared by both parents and

they are under a moral obligation to take care of her physical, emotional

and mental well being, it cannot be urged that to invoke the grounds of

cruelty, the wronged spouse cannot point out instances of grossly excessive

cruelty meted out by the spouse to their helpless child. In fact, that would

be a relevant consideration to examine as to whether the conduct of the

spouse is such as to cause a reasonable apprehension in the mind of the

wronged spouse that it will be harmful or injurious for him to continue

living with the spouse. (Refer: Dr. N.G. Dastane vs. Mrs. S. Dastane AIR

1975 SC 15 34). In the instant case, the frequent acts of the appellant of

abusing and insulting the respondent and his parents, locking him out of the

house, gravely ill-treating their child on several occasions, grossly

MAT.APP.(F.C) 132/2015 Page 8 excessive show of temper, etc. when looked at collectively, demonstrates

the utter lack of sensitivity on the part of the appellant/wife and a pattern of

behaviour that would cause unending misery to the respondent and his

family members, beyond tolerance

17. There is no dispute with regard to the legal position that no decree

can be passed merely because the evidence remains uncontradicted and

irrespective of the appellant having been proceeded against ex-parte, the

Court would still be required to examine if the uncontradicted testimony of

the witnesses produced by the respondent, satisfy the conditions of law.

However, the records reveal that the respondent/husband was duly cross-

examined by the appellant's counsel and no material contradiction had

emerged during his cross-examination which could render his testimony as

unreliable. On the contrary, his testimony stands corroborated by the

uncontradicted testimony of his father (PW-2). Further, their oral

testimony finds support from the contemporaneous evidence in the shape of

letters written by the husband to different authorities voicing his grievance

against the intensely cruel behaviour of the appellant qua him and the child.

18. In view of the above facts and circumstances, we are of the opinion

that the impugned judgment does not call for any interference. The

MAT.APP.(F.C) 132/2015 Page 9 conclusion arrived at by the learned Family Court is backed by sound

reasoning. The present appeal is accordingly dismissed in limine, along

with the pending application, with no order as to costs.

DEEPA SHARMA (JUDGE)

HIMA KOHLI (JUDGE) AUGUST 21, 2017 ss

MAT.APP.(F.C) 132/2015 Page 10