Mahesh Kumar @ Maneesh vs Reena Kumar
2018 Latest Caselaw 4015 Del

$~63
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                      Date of Judgment: 17th July, 2018
+       MAT.APP.(F.C.) 158/2018

        MAHESH KUMAR @ MANEESH                              ..... Appellant
                           Through:       Mr Suman Doval, Adv
                           versus
        REENA KUMAR                                         ..... Respondent
                           Through:       Nemo
CORAM:
    HON'BLE MR. JUSTICE G.S.SISTANI
    HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)

CM No. 27742/2018 (exemption)

Exemption is allowed subject to just exceptions.

Application stands disposed of.

CM No. 27743/2018 (delay in filing) and CM No. 27744/2018 (delay in re-filing) Delay in filing and re-filing the appeal is condoned.

Applications stand disposed of.

MAT.APP.(F.C.) 158/2018

1. This is an appeal by the appellant/husband under Section 19 of the Family Courts Act, 1984. Challenge in this appeal is to the judgment dated 06.11.2017 passed by the Family Court by which a petition seeking grant of divorce under Section 13(1)(1a) of the Hindu Marriage Act, 1958 on the ground of cruelty has been dismissed.

2. The necessary facts to be noticed for disposal of this appeal are that the marriage between the appellant and the respondent was solemnized at Delhi on 13.02.2004. The parties were blessed with a son on 26.05.2005. A daughter was born on 04.03.2008. It is claimed that the parties have been residing separately since October 2008. A petition seeking dissolution of marriage on the ground of cruelty was instituted on 24.04.2018. Learned counsel for the appellant has contended that the Family Court has failed to take into account that the respondent, from the very beginning of their marriage had shown dislike to the family members of the appellant and was a very quarrelsome person. It is submitted that the judgment of the Family Court is contrary to the settled position of law. The Family Court has failed to take into consideration the specific evidence led by the appellant with regard to the behaviour of the respondent. However, the Family Court fell in grave error by observing that there was no specific instance of erratic, rude, intemperate, abnormal or obnoxious behaviour on her part. It is further submitted that the Family Court has not taken into consideration that during cross examination respondent has admitted that she was a non-vegetarian while in the affidavit she has deposed that she is a vegetarian and thus the ground raised by the appellant/husband with regard to the dietary habits of the respondent have been wrongly ignored. Learned counsel for the appellant submits that the parties have been living separately for the past 10 years approximately and it is a practically dead relationship, while the Family Court had not taken this factor into account.

3. We have heard the learned counsel for the appellant.

4. We have also carefully examined the judgment passed by the Family Court. The learned counsel for the appellant has also submitted that the copies of the petition seeking dissolution of marriage, written statement, evidence and cross examination have been placed on record along with the present appeal which we have also examined. The Family Court has taken note of the grounds of cruelty which have been raised by the appellant and were urged before the Family Court. The same include:-

(i) Unhealthy dislike for the appellant's family more particularly, vis a vis the appellant's cousin sister;

(ii) quarrelsome with mother-in-law;

(iii) displayed selfish and jealous attitude towards petitioner's sister and on many occasions has been abundantly hostile towards them;

(iv) quarreled with the appellant on every occasion when he incurred expenditure towards his sisters'

(v) Instance of June 2004, when he had purchased for all the ladies of his household but the wife had displayed her selfish and jealous behaviour as to why the sisters had received the gift before her.

(vi) Rs. 10,000/- spent exclusively by her when the amount was to be spent on respondent as well as also on the sisters of the appellant.

(vii) Knowing well of the fact that the appellant was purely vegetarian, the respondent prepared non-vegetarian dishes for their children. Thus violating his religious belief.

5. The appellant had appeared as PW1 and had reiterated the contents of his evidence as PW1/X which was filed based on the lines of the petition.

6. The family Court had declined the relief so prayed by the appellant on the ground that there was no specific evidence of any date, time or occasion about rude, erratic, intemperate, abnormal or obnoxious behaviour of the respondent/wife with the appellant or his family members. The Family Court has noted that during cross examination of PW1, he was unable to recall any article that was demanded by his wife beyond his financial means and was unable to cite instances of demand of jewellery by the wife. The Family Court observed as under:

"First, thing first, there is no specific evidence of any date, time or occasion about the erratic, rude, intemperate, abnormal or obnoxious behavior of the respondent-wife with him or his family members. PW1 in his cross examination was unable to recall any article that was demanded by his wife beyond his financial wherewithal and he was unable to cite instances of demand of jewellery by the wife.

The said assertion about the behaviour of the respondent-wife does not only remain un-substantiated but also get demolished when PW-1 in his cross examination acknowledged that the respondent-wife has been taking good care of their children as well as his parents. It may be indicated that the respondent-wife all through in this turbulent times has been residing with the parents of the petitioner- husband in their house at Mayur Vihar, Delhi. PW-1 further conceded a suggestion that the respondent-wife has been living happily with his parents, brothers, and their family in the joint family and no one has any complaint against her. Further, the respondent-wife was not put any suggestion that she had any issues with the cousin sisters of the petitioner-husband at any point of time."

7. As far as the appellant being a vegetarian and the wife being a non- vegetarian and the allegation that she cooked non-vegetarian food knowing fully well that he was a vegetarian for religious reasons and thus caused mental cruelty to him also remained unsubstantiated for the reason that during cross examination, the appellant conceded that his parents, brother and other family members are non-vegetarian besides his two children. Taking this evidence into account the ground of cruelty by cooking and eating non-vegetarian and serving to the children of the appellant, in our view, would not be available to the appellant and rightly rejected by the Family Court.

8. Another argument, which has been raised and urged was the prolonged mental disorder or that the respondent was bipolar or her anger issues due to mood swings remain unsubstantiated as during cross examination, the appellant admitted that he had never got his wife medically checked for any mental disorder and in fact testified that she did not have a mental disorder but had anger issues.

9. The Family Court has also relied on the cross examination of PW1 wherein he had admitted that he has been visiting the house at Mayur Vihar where his wife and children are residing along with his parents. The appellant conceded that he had been treating his wife and children in a manner of a devoted husband and father, meeting them on regular basis and even taking them out. In fact the wife in her cross examination also testified that her husband never neglected her and had been bearing monthly expenses in the nature of school fee and hobby classes for children, insurance policies and all other accidental expenses besides Rs. 10,000/- per month without

fail. This piece of evidence is to be read while taking note of the allegations made by the respondent against her husband that the husband had left the matrimonial home in order to reside with an Italian lady with whom he was also running his jewellery business, while the wife and children continue to stay in the family house. We may hasten to note that this allegation of the wife has remained unsubstantiated during the evidence except her verbal testimony which has not been relied upon by the Family Court.

10. Having regard to the evidence on record, we find no ground to interfere with the judgment passed by the Family Court.

11. Accordingly, the appeal is dismissed.

12. At this stage, learned counsel for the appellant submits that the appellant is ready for an amicable resolution of the matter and prays that the parties should be called to Court. He further submits that he is willing to pay Rs. 10,000/- towards litigation expenses for her to be represented in Court which he would bring on the next date of hearing.

13. List the matter on 06.08.2018. The matter would be taken up post lunch. Parties are directed to remain present in Court.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J

JULY 17, 2018 SU