Geeta Devi vs Sunil Kumar
2018 Latest Caselaw 3767 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 9th July, 2018
+      MAT.APP. 8/2013 & CM No.20716/2014 (u/s 25 of the
       Hindu Marriage Act, 1955)
       GEETA DEVI                       ..... Appellant
                  Through: Mr. Suraj Bhan, Adv.
                       Versus
    SUNIL KUMAR                         ..... Respondent

Through: Mr. A.S. Sharma, Adv. for Mr. Niraj Chaudhary, Adv..

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This appeal under Section 28 of the Hindu Marriage Act, 1955 impugns the judgment and decree [dated 17th December, 2012 in HMA No.24/2010 (Unique Case ID No.02402C0020422010) of the Court of Additional District Judge (ADJ)-02, North-East District, Karkardooma Courts, Delhi] of dissolution of marriage of the parties under Section 13(1)(ib) of the Act.

2. The appeal came up before this Court first on 10th April, 2013 when notice thereof was ordered to be issued. Vide order of subsequent date, trial court record was requisitioned. The matter remained pending for adjudication of the application of the appellant/wife under Section 25 of the Act and vide common judgment dated 14th January, 2015 in this appeal and in several other appeals, the legal question was decided and applications under Section 25 in each of the case listed separately for adjudication. The order dated 25th August, 2015 records that the parties in this appeal had filed affidavits in terms of judgment dated 14th January, 2015. Vide order

dated 14th July, 2016, the parties were referred to Mediation Cell of this Court. Mediation however remained unsuccessful. Efforts were thereafter made in Court also for amicable settlement but which also remained unsuccessful. Vide order dated 2nd February, 2017, the appeal was listed for final hearing. Vide order dated 13 th April, 2017, the counsels were directed to file written submissions and which have been filed. The appeal was thereafter adjourned from time to time.

3. Today, the counsel for the appellant / wife states that both counsels have already filed written arguments. The counsel for the appellant / wife has also been heard qua what he desires to urge. The respondent / husband appearing in person and as identified by the counsel for the appellant / wife states that his advocate is not available. However, the appeal being old and the written arguments of the counsel for the respondent / husband being already on record, it is not deemed appropriate to await the counsel for the respondent / husband. The record has been perused.

4. The respondent / husband filed the petition, from which this appeal arises, for dissolution of his marriage with the appellant / wife, under Section 13(1)(ia) and (ib) of the Act, pleading that (i) the marriage was solemnized on 8th December, 1997 at Delhi according to Hindu rites and ceremonies; (ii) out of the said wedlock, two sons were born on 19th November, 1998 and 13th August, 2001 and of which the elder son was residing with the respondent / father and the younger son with the appellant / mother; (iii) the appellant / wife, since beginning, insisted upon living separately from the members of the family of the respondent / husband but the respondent / husband

was unable to afford to live separately from his old parents who were suffering from various ailments; (iv) the appellant / wife, for no reason, picked up quarrels with the respondent / husband and with other family members and used filthy and abusive language and created ugly scenes in the presence of the neighbours and relatives; (v) on 6th July, 2003, the appellant / wife refused to welcome the visiting friends of the respondent / husband and used abusive language in their presence and mishandled the respondent / husband and threatened the respondent / husband that she would involve him and other family members in false and frivolous cases unless the respondent / husband arranged separate accommodation; (vi) similar incident took place on 7th September, 2003; (vii) the appellant / wife, on 27 th October, 2003, in the absence of the respondent / husband, left the matrimonial home without any reasonable cause and excuse and has deprived the respondent / husband of cohabitation; (viii) the appellant / wife also took away all her jewellery, clothes and other articles; (ix) the appellant / wife refused to come back inspite of efforts made; (x) the appellant / wife got registered FIR No.14/2006 under Sections 406 and 498A of the Indian Penal Code (IPC) of Police Station Krishna Nagar, Delhi against the respondent / husband and his family members; (xi) the appellant / wife also filed a petition under Section 125 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and vide order dated 20 th May, 2008 maintenance at the rate of Rs.1,500/- per month was granted to the appellant / wife; and, (xii) the respondent / husband had not condoned the acts of cruelty.

5. The appellant / wife contested the petition by filing a written statement, denying the various averments in the petition, and pleading that (a) she was harassed over dowry demands by the respondent / husband and his family members, compelling her to file the FIR aforesaid; (b) in fact, on 27th October, 2003, the respondent / husband took the appellant / wife and younger son near the residence of the parents of the appellant / wife and left them there, just in the clothes which they were wearing and denying that any efforts were made by the respondent / husband or his family members to take back the appellant / wife to her matrimonial home; and, (c) the respondent / husband had also filed a petition under Section 25 of the Guardians and Wards Act, 1890 for custody of the younger son and which petition was also pending consideration. The appellant / wife thus denied that she had meted out any cruelty and/or deserted the respondent / husband.

6. Though a replication is found to have been filed by the respondent / husband but merely denying the averments in the written statement and reiterating the contents of the petition for dissolution of marriage.

7. On 23rd March, 2010, the following issues were framed:

"1. Whether the respondent has treated the petitioner with cruelty as alleged after solemnization of marriage? OPP

2. Whether the respondent has withdrawn from the society of the petitioner without any reasonable cause? OPP

3. Relief."

8. Vide order dated 15th December, 2012, issue no.2 was amended as under:

"2. Whether the petitioner has been deserted by the respondent for a continuous period of not less than two years immediately preceding the presentation of t.he petition? OPP"

9. The learned ADJ vide the impugned judgment and decree, dissolved the marriage of the parties under Section 13(1)(ib) of the Act, finding/observing/reasoning/ holding that: (i) the respondent / husband, besides examining himself had examined his father and a friend-cum-neighbour, both of whom supported the case of the respondent / husband; (ii) the appellant / wife, besides examining herself, had also examined her neighbour; the neighbour deposed about the respondent / husband, on 27th October, 2003 having left the appellant / wife and the younger son near the house of the parents of the appellant / wife and that none came to the house of the parents of the appellant / wife to take back the appellant / wife; (iii) the allegation regarding quarrelsome nature of the appellant / wife was general in nature and not specific; the evidence led by the respondent / husband in this respect also was general; (iv) the evidence led by the respondent / husband of the incident of 6th July, 2003 could not be believed; (v) the evidence led by the respondent / husband about the incident of 7th September, 2003 did not prove what was pleaded; (vi) the petition for dissolution of marriage was filed after seven years of the incidents and such solitary incidents, even if any, could not cause cruelty; (vii) the filing of the complaint by the appellant / wife against the respondent / husband and his relatives before the Crime Against Women Cell could not be considered sufficient for granting divorce; reliance in this regard was placed on Kanta Vs. Rakesh Kumar 11

(2011) DMC 61 and Vipin Kumar Sharma Vs. Mithlesh Kumari II (2009) DMC 111; moreover, the FIR was pending consideration before the competent Court; (viii) the factum of filing a petition under Section 125 Cr.P.C. could not constitute cruelty; (ix) thus no case for dissolution of marriage under Section 13(1)(ia) was made out; (x) there was no dispute that the parties had been residing separately since 27th October, 2003 and the only difference was that while the respondent / husband's version was that the appellant / wife left the matrimonial home of her own, with jewellery and other articles, in his absence, the appellant / wife's version was that it was the respondent / husband who had left the appellant / wife and the younger son near the residence of the parents of the appellant / wife; (xi) both sides, during evidence, had stuck to their respective stands on this aspect; (xii) however the evidence disclosed that the appellant / wife had no desire to resume cohabitation and thus even if it be presumed that it was the respondent / husband who had left the appellant / wife at her parental home, the same will not help the appellant / wife in any manner whatsoever; (xiii) the respondent / husband had confronted the witness of the appellant / wife with a statement dated 12 th December, 2004 of one Man Singh, uncle of the appellant / wife, recorded by a police official of Police Station, Nand Nagri and which statement was signed by the said Man Singh as well as by the appellant / wife and her father as well as by RW2, as witnesses; the said statement records that the respondent / husband had gone to the house of the appellant / wife on 12th December, 2004 to take back the appellant / wife to the matrimonial home but the appellant / wife was not willing to join the

respondent / husband; RW2 admitted the contents of the said statement; moreover the said statement was recorded by the police officer in discharge of his duty and there is no reason to dispute the same; (xiv) the appellant / wife did not examine Man Singh who was her uncle; (xv) this would show, that as far back as on 12th December, 2004, attempts were made by the respondent / husband to resume matrimonial cohabitation but the same were rejected by the appellant / wife; (xvi) in mediation proceedings held on 25 th October, 2008, a compromise was arrived at, whereunder the appellant / wife had agreed to go back to the matrimonial house; (xvii) the appellant / wife admitted that she did not comply with the said compromise; though she stated that the reason for not complying with the same was that the compromise was one sided but without specifying as to what terms desired by her to be recorded were not recorded; (xviii) the respondent / husband, in his evidence had deposed that he had also taken a separate room and thereafter a house on rent in accordance with the said compromise but the appellant / wife still refused to join the respondent / husband; (xix) thus, the evidence showed that the appellant / wife, in the year 2008 also, was not willing to reside with the respondent / husband even though it was so agreed in the compromise; (xx) the appellant / wife, in her cross-examination deposed that she was not willing to join the respondent / husband unless the respondent / husband purchases a new house and that she was not willing to live with the respondent / husband in a separate rented house; (xxi) the respondent / husband is doing the work of embroidery and was earning Rs.2,500/- to Rs.3,000/- per month and

his father was working as a labourer doing the work of nickel polish in a factory; (xxii) the insistence by the appellant / wife that the respondent / husband should buy a new house for her to live with him and refusal to live with the respondent / husband in a rented room / house showed that the appellant / wife was avoiding resumption of matrimonial cohabitation; (xxiii) the conduct of the appellant / wife for eight years, of avoiding resumption of cohabitation, was indicative of her intention to desert the respondent / husband; (xxiv) on the contrary, the intention of the respondent / husband to resume cohabitation stood proved; (xxv) the parents of the appellant / wife, who are the best witnesses for proving demand for dowry by the respondent / husband and his family members, were not produced and only a neighbour was produced as RW2.

10. The order dated 1st December, 2015 in this appeal records, that the case instituted by the appellant / wife against the respondent / husband under Section 498A IPC had been closed and the respondent / husband had been acquitted.

11. The counsel for the appellant / wife, during his arguments has pointed out the contradictions in the evidence of the witnesses of the respondent / husband on the ground of cruelty, also taken for seeking dissolution of marriage. However, the said contradictions, even if any, are not of relevance inasmuch as the respondent / husband has not been granted dissolution of his marriage with the appellant / wife on the ground of cruelty. The counsel for the respondent / husband, who has since appeared, also on enquiry states that the respondent /

husband has not preferred any appeal against the dismissal of the petition on the ground of cruelty.

12. Thus the contradictions pointed out are of no avail.

13. As far as the ground of desertion, on which decree of dissolution of marriage has been granted, is concerned, the counsel for the appellant / wife argues that as far as RW2/P1 being the statement of Man Singh recorded by the police is concerned, the same did not form part of the pleadings and was not filed by the respondent / husband along with his documents and the reliance placed by the learned ADJ thereon is contrary to law.

14. I have perused the trial court record and find that RW2 Chander Pal Singh was cross-examined by the counsel for the respondent / husband on 1st November, 2010. He, in his affidavit by way of examination-in-chief deposed, that since 27th October, 2003 when the respondent / husband left the appellant / wife and the younger son near the parents house, neither the respondent / husband nor his parents or other relatives had come to take back the appellant / wife. However, the said witness, in his cross-examination, admitted (a) that Man Singh was the uncle (Chacha) of the appellant / wife; and, (b) that the document Ex.RW2/P1 shown to him was signed by him at point 'A', after reading the contents of the documents.

15. The argument of the counsel for the appellant / wife, of the said document having been wrongly read in evidence, is contrary to law. It is always open to a litigant to, in cross-examination, confront the witness of the opposite party with documents and which documents, if admitted by the witnesses, are entitled to be read in evidence.

Reference if any required in this regard can be made to Subhash Chander Vs. Bhagwan Yadav 2009 SCC OnLine 3818 holding that a litigant, who for the sake of element of surprise, chooses to confront the witness in cross-examination with the document rather than filing the document, takes a chance of the document being not read in evidence if not admitted by the witness under cross-examination. RW2 Chander Pal Singh in the present case is unequivocally found to have admitted not only his signatures on the document but also the contents of what was recorded in the document. Significantly, the appellant / wife was cross-examined thereafter on 21st April, 2011, 30th July, 2012 and 21st September, 2012 and though had an opportunity to render application if any required to be rendered with respect to RW2/P1, but did not choose to do so. In any case, no merit is found in the argument that the learned ADJ has wrongly read RW2/P1 into evidence.

16. The other argument of the counsel for the appellant / wife is that inspite of no rent receipt or Tenancy Agreement of room or house taken on rent by respondent / husband having produced before the Court, it has been so believed.

17. The learned ADJ, in the impugned judgment, has reasoned, that the advocate for the appellant / wife, though in cross-examination of the respondent / husband suggested that no house was taken on rent, but the statement otherwise given by appellant / wife was that she did not comply with the compromise arrived at in mediation, as it was one sided. It is not the case of the advocate for the appellant / wife that such stand was not taken in the written statement. In view of the said

stand, the suggestion given in cross-examination of the respondent / husband, of the house having not been taken on rent and the argument urged today, of no rent receipt having been produced, is of no avail.

18. No other argument has been urged.

19. I have otherwise, on perusal of the evidence, satisfied myself that the finding given by the learned ADJ for grant of decree of dissolution of marriage on the ground of appellant / wife having deserted the respondent / husband, is in consonance with the law and the evidence and pleadings on record.

20. There is thus no merit in appeal.

21. Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

JULY 09, 2018 'gsr'..