Delhi High Court
Reena vs Babloo @ Hari Babu on 8 March, 2018
#7
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 08.03.2018
MAT.APP.(F.C.) 169/2016
R ..... Appellant
versus
[email protected] ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Ashok Gurnani, Advocate
For the Respondent : None
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
SIDDHARTH MRIDUL, J (ORAL)
1. The present appeal under Section 19 of the Family Courts Act, 1984
assails the judgment and decree dated 24.09.2016, rendered by the learned
Family Court in HMA No.561839/2016 (Old No.609/2014) titled as 'Smt. R
vs. Sh. B @ H B'(hereinafter referred to as 'subject petition'), whereby, the
petition filed by the appellant-wife (hereinafter referred to as 'the wife')
came to be dismissed.
2. The wife had instituted the subject petition under Section 13(1)(ia) of
the Hindu Marriage Act, 1955 (hereinafter referred to as 'the said Act')
against the respondent-husband (hereinafter referred to as 'the husband'),
seeking dissolution of the marriage by a decree of divorce essentially on the
ground of cruelty.
3. It was averred on behalf of the wife before the learned Family Court
that the marriage between the parties was solemnized at Delhi on
17.04.2002, as per Hindu rites and customs. Subsequent thereto, one female
child, namely, baby A was born from the wedlock on 19.07.2006. Further,
that soon after the marriage, the husband and his family members started
taunting her for having brought less and sub-standard dowry and inflicted
physical and mental torture on her. Every conceivable torment was inflicted
on her, in order to coerce and compel her to bring more dowry.
4. The wife in order to maintain peace and protect the marriage between
the parties, bore this torture with equanimity in the hope that better sense
would prevail in due course of time. All the hopes and expectations of the
wife were belied and crushed and her quest for happiness was in vain
because when she conceived and was pregnant, the husband and his family
neglected to provide her with food, medicines and diet, as were necessary.
Medical attention was also denied to her and eventually she had to rely on
her family members for all her requirements, including pre and post delivery
expenses.
5. To compound matters, on the birth of the said minor child, the
husband and his family members berated the wife for not having delivered a
male child, and refused to provide any sustenance to both of them. To make
matters worse, it was testified that in the month of January, 2008, her
husband and his family members demanded a sum of Rs.50,000/- from her
family, and despite her mother's inability to disburse such an amount; in
order to secure the well-being of the wife and her minor daughter, a sum of
Rs.50,000/- was given to the husband. Not satisfied with this amount, it
was categorically asseverated that on 21.08.2009, the wife was physically
assaulted and threatened to sign some blank papers, ostensibly for taking a
loan, and when she refused to sign the same the husband placed a knife on
her neck to obtain her signatures. It was further testified on behalf of the
wife that she made a call to the Police Control Room, and the police arrived
and pacified the parties; but soon after she and her minor daughter were
turned out of her matrimonial home in just the clothes they were wearing on
their person. The dowry articles and istridhan of the wife were illegally
retained and withheld by the husband and his family members and have
never been returned. The wife and her minor daughter have been residing at
her parental home from 21.08.2009, and the husband has made no attempts
to take her back to the matrimonial home.
6. Helpless and abandoned, the wife in the month of November, 2010
eventually filed a petition under Section 125 of the Code of Criminal
Procedure, 1973 (for short 'Cr.P.C.') against the husband, seeking
maintenance from the latter. In addition thereto, the wife also instituted a
petition under Section 13 (1) (ia) of the said Act, seeking a decree of divorce,
dissolving the marriage between the parties. During the latter proceedings, a
compromise was arrived at between the parties, whereby, it was agreed that a
petition seeking decree of divorce by mutual consent would be filed. In
terms of the compromise arrived at between parties, the wife withdrew the
earlier petition seeking maintenance under Section 125 Cr.P.C., as well as,
the said petition seeking divorce on the same day.
7. Although, a joint petition is stated to have been filed before the court
of competent jurisdiction on 05.12.2013, under Section 13B (1) of the said
Act for a decree of divorce by mutual consent; the same was eventually
withdrawn on account of the circumstance that the husband stopped
appearing before the Court despite several opportunities.
8. Aggrieved by the acts of physical and mental cruelty and neglect
inflicted by the husband, the wife instituted the subject petition under
Section 13(1)(ia) of the said Act, seeking the relief of dissolution of marriage
by a decree of divorce essentially on the ground of cruelty.
9. Despite service of notice of the said subject petition through
publication, the husband did not appear in court and was eventually
proceeded ex parte on 14.05.2015. It is observed that in the present appeal
as well there has been no appearance on behalf of the husband despite
service of notice through publication, and this Court proceeded ex parte
against him vide order dated 31.08.2017.
10. Mr. Ashok Gurnani, learned counsel appearing on behalf of the wife
has taken us through the material on record, as well as, the impugned
judgment. It is urged on behalf of the wife that not only is she entitled to a
decree of divorce on the grounds of extreme cruelty and desertion; but is
independently entitled to the same in view of complete and irretrievable
breakdown of the marriage, as is evidenced from the circumstance that the
parties have not resided together since 21.08.2009.
11. A perusal of the impugned judgment reflects that the learned Family
Court was of the opinion that the testimony of the wife was a bald narrative,
unsubstantiated by necessary evidence. Further, the impugned judgment was
predicated on the circumstance that no incident of physical or mental cruelty
had been pleaded by her. It was lastly opined that in view of the
circumstance that the wife did not institute any proceeding for restitution of
conjugal rights since the date of being turned out from her matrimonial
home, "what blatantly comes to the fore is that the petitioner intended a
permanent and willful forsaking of the respondent and all her obligations
and duties qua him arising out of the matrimony."
12. We are completely unable to concur with the reasoning and finding
arrived at by the learned Family Court. Although, it is trite to state that the
wife's case must stand on his own legs; the uncontroverted averments made
on her behalf in her pleadings and her testimony before the learned Family
Court, leaves no manner of doubt that the husband has completely forsaken
her.
13. The law stipulates that the appellant need not prove a fact which is not
categorically traversed on behalf of the respondent. The rule of procedure
requires pronouncement of judgment or decree on the failure of the
respondent to file a written statement to controvert and refute the averments
made on behalf appellant. In the present case, the husband despite service of
notice by publication before the learned Family Court, as well as, this Court,
has chosen not to appear and defend himself and has resultantly been
proceeded ex parte on both the occasions.
14. The conduct of the husband, as is evidenced from the uncontroverted
testimony of the wife, is tantamount to causing danger to the life, limb and
health of the latter, and gives rise to the reasonable apprehension of physical
and mental danger and trauma.
15. Further, the parties in the present proceedings have been living
separately without any contact whatsoever since the year 2009, and the wife
has been left to her own devices to fend for herself, as well as, her minor
daughter. The apathy and the conduct of the husband cannot but be
characterized as having caused intense mental cruelty to the wife.
Furthermore, as has been urged with utmost erudition by Mr. Ashok
Gurnani, learned counsel appearing on behalf of the wife, that although
breakdown of marriage is not a ground for divorce, the concept of cruelty
has been blended by the Courts with irretrievable breakdown of marriage.
In support of his submission in this behalf, our attention has been invited to
the following decisions:-
(i) Madhvi Ramesh Dudani v. Ramesh K. Dudani, reported as
2006 (2) Mh. LJ 307;
(ii) Shrikumar V. Unnithan vs. Manju K. Nair, reported as 2007
(4) KHC 807.
16. In view of the foregoing discussion, we are of the considered view
that; it is not possible for the wife and the husband to retain the matrimonial
bond, which is a relevant factor to determine the issue of cruelty, for the
obvious reason that the continuance of the marriage by the parties is the
pursuit of happiness and not to torment or traumatize each other. In these
circumstances, to insist upon the wife to retain the matrimonial bond would
tantamount to putting her under intense mental cruelty.
17. We are also constrained to observe that a reading of the impugned
judgment discloses a rather hyper technical approach on the part of the
learned Family Court, both in relation to appreciation of evidence and
understanding of the circumstances antecedent and attendant in the present
case. The same in our considered view has lead to complete miscarriage of
justice.
18. Resultantly, the impugned judgment and decree dated 24.09.2016,
passed by the learned Family Court in HMA Petition No.561839/16 (Old
No.609/14) titled as 'Smt. R vs. Sh. B @ H B', is set aside and quashed. The
present appeal instituted by the wife against the husband seeking dissolution
of marriage, is hereby allowed. A decree of divorce be drawn forthwith.
19. With the above directions, the appeal is allowed and disposed of
accordingly.
SIDDHARTH MRIDUL
(JUDGE)
DEEPA SHARMA
(JUDGE)
MARCH 08, 2018
dn
