Delhi High Court
Bharti Bhardwaj vs Deepak Bhardwaj on 3 February, 2021
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 03.02.2021
+ MAT.APP.(F.C.) 18/2021
BHARTI BHARDWAJ ..... Appellant
Through Mr.I.S.Dahiya, Adv.
versus
DEEPAK BHARDWAJ ..... Respondent
Through None.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J(ORAL)
C.M.No.3968/2021
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
C.M.No.3969/2021 (condonation of delay in refiling)
1. This is an application filed by the petitioner seeking condonation of
delay in refiling the present petition.
2. Keeping in view that the accompanying petition was filed within the
period of limitation, the delay in re-filing which took place mainly during
the period when the regular functioning of the Court stood suspended, we
are inclined to accept the explanation given in the application and proceed
to deal with the appeal on merits.
3. The application is, accordingly, allowed and disposed of.
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Signed By:GARIMA MADAN
Location:
Signing Date:06.02.2021
MAT.APP.(F.C.) 18/2021
4. The present appeal under section 28 of the Hindu Marriage Act, 1955
(hereinafter referred to as "HMA") assails the judgement dated 21.11.2019
passed by the Principal Judge, Family Courts, West District, Tis Hazari
Courts, Delhi, in HMA NO. 1069/19/11, allowing the divorce petition
preferred by the respondent/husband on the ground of cruelty under
Section 13(1)(ia) of the HMA. The impugned judgment also disposed of
the appellant/wife's application under Section 24 of the HMA by holding
that since she had already been awarded maintenance under Section 12 of
the Protection of Women from Domestic Violence Act, 2005, she was not
entitled to any further maintenance which she sought under Section 24 of
the HMA because both of these proceedings were parallel in nature.
5. The facts in brief are that the marriage between the parties was
solemnized on 07.02.2010 in accordance with Hindu rites and ceremonies;
they had a daughter out of the wedlock on 30.12.2010. The parties have,
however, been residing separately since 28.11.2011. A few weeks later, on
17.12.2011, the respondent preferred a petition under Section 13(1)(ia) of
the HMA seeking dissolution of the marriage on the grounds of cruelty.
The case of the respondent before the Family Court was that
notwithstanding the cordial manner in which she was received by his
family and all his efforts to maintain congeniality in their marriage, his
wife/the appellant treated his family and him with cruelty and cold
insolence. The divorce petition contained detailed descriptions of the
various instances of cruelty alleged by him, which involved the appellant
humiliating him and his family. He claimed that the appellant, who was
arrogant, finicky and failed to take any initiative in adapting to the
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matrimonial house, used to force him to take her to her parental home very
frequently. The respondent further claimed that the appellant was
compelling him to leave his family home, his family and reside with her in
an accommodation near her parents' house. He claimed that when he failed
to abide by this demand of hers, the appellant not only picked a fight with
him, but she also left the matrimonial home on 28.11.2011 with their minor
child, while threatening to implicate him and his family in false cases.
6. The appellant filed her written petition, opposing the divorce petition
and alleging that she was the one who had been ill-treated and tortured by
the respondent and his family members, who had created such a toxic
environment for her, that she ultimately decided to leave their house. She
claimed that the respondent's family were enraged with her for bringing
insufficient dowry and often expressed this, they also ostracised her and
would not allow her to enter the kitchen or share in household chores. This
behaviour compelled her to file complaints against the respondent and his
family before the DCP (Women Cell) of the Delhi Police, Kirti Nagar,
which complaint is presently under investigation.
7. Before the learned Family Court, the respondent, in support of his
allegations, filed his evidence by way of affidavit which set out the date,
time and description of all the incidents displaying cruelty on the
appellant's part, including the manner in which he and his family were
taunted and humiliated by her. He also stated that at a time when he was
unwell and had been hospitalised, the appellant-wife did not even care to
visit him. In reply, the appellant filed her evidence by way of affidavit,
which merely offered a denial of all the allegations levelled by the
respondent. However, it transpires, the appellant failed to cross-examine
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the respondent on any of the specific incidents of cruelty set out by him. In
these circumstances, the Family Court in the impugned judgment has held
that the testimony of the respondent was unrebutted and was, therefore,
accepted; a decree of divorce was passed in favour of the respondent by
holding that the appellant had treated him with cruelty. The findings of the
learned Family Court in this regard read as under:
44. The petitioner has led his evidence to prove the allegations.
The respondent though has refuted all the allegations but
testimony of the petitioner has remained unchallenged as he was
not crossexamined on several aspects and incidents stated by
him. On the other hand, the respondent has baldly denied the
suggestions on behalf of the petitioner that she wanted to live
separately from the family of the petitioner or she used to quarrel
with her mother-in-law regarding household work.
45. The effect of non cross-examination of a witness was
discussed in the judgment reported as State of UP Nahar Singh
(dead) & Ors. (1998) 3 SCC 561, Their Lordships observed, "in
the absence of cross-examination on the explanation of delay, the
evidence of PWI remained unchallenged and ought to have been
believed by the High Court. It was observed in Srichand &
Shivan Das vs. State (1985) 28 DLT 360, the law is well settled
that when the evidence of a witness is allowed to go
unchallenged with regard to any particular point. it may safely
be accepted as true...... ".
46. Following the above principles of law, the testimony of the
petitioner has not been contradicted in respect of acts of cruelty
alleged by him. No suggestion was given to him that he was
deposing falsely in respect of the allegations. Thus, the
respondent has failed to impeach the credibility of the testimony
of the petitioner.
47. Reverting to the allegations raised by the respondent against
the petitioner. Respondent has raised bald assertions in her
affidavit Ex.RWI/A. She has mentioned that after marriage, she
started residing in her matrimonial house, the petitioner and his
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Signing Date:06.02.2021
mother ill-treated her. She was not allowed to enter in the
kitchen or to touch any household items. At times, she had to go
out without any meals and her mental torture got aggravated day
by clay. It was done with a design that she may follow their
dictates. The respondent has also stated that the elder brother of
the respondent namely Mukesh Bhardwaj and his wife made her
life miserable and his mother used
to abuse the respondent in filthy language calling her as 'randi,
kangli etc'. She was treated as a maid. Respondent has also
alleged that the elder brother of the petitioner had an evil eye on
her and his wife assisted him in this evil design. Thus, for
temporary peace, she went to her parental home on 28.11.2011.
48. It is an admitted case that the parties to the petition had lived
together as husband and wife in the matrimonial house from
07.02,20 J0 till 28.11.2011. During this period also, the
respondent used to be away to her parental house. Specifically,
she left the matrimonial house on 12.04.2010 and joined back on
25.06.2010 after petitioner had put in lot of efforts to bring her
back. He had to suffer humiliation at the hands of the respondent
and her family members whenever he want to her parental house
to bring her back. Respondent again went to her parental house
on 28.07.2010. Immediately, after the birth of their child, she
wanted to go to her parents' house. In August 2011, when she
went on the occasion of Raksha Bandhan, she did not want to
come back to the matrimonial house after the festival. Finally,
she left the matrimonial house on 28.11.2011. The respondent
though has alleged that she went for a temporary period to gain
some peace for herself. But she has not stated even a single
instance in her affidavit Ex.RW1/A that she made any effort to
join the company of the petitioner. There is no whisper of any
attempt made by her to come back to the matrimonial house.
49. Respondent has also admitted that she had lodged a
complaint in CAW Cell which got culminated into an FIR
bearing No.138/12 and was registered on 27.05.2012 under
Section 498-A/406/34 IPC. In her cross-examination, the
respondent has further admitted that she had lodged this
complaint after she had received the notice of the divorce case
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filed by the petitioner. It was argued on behalf of the petitioner
that the respondent had filed a false complaint in CAW Cell as
she has admitted that the purpose to file the complaint was that
she was looking for some counselling. so there was no truth in
the complaint. Strangely, the respondent has deposed that she
had filed the complaint so that the matter may be settled after
counselling.
50. Moreover. the allegations stated by the respondent in the
written statement and those referred to in the FIR are quite
disparate. In the written statement, the respondent has raised an
allegation that her brother-in-law had an evil eye upon her
which she has not mentioned in the FIR. Furthermore, she has
also not led any cogent evidence to prove the allegations about
her ill-treatment by the petitioner and his mother.
51. Pertinently, the mother-in-law and brother-in-law of the
respondent have been discharged and only the petitioner is
facing trial in the criminal case under Section 498-A/406 IPC.
Admittedly, the respondent has not filed any appeal against their
discharge.
54. From the evidence of the parties and the material placed on
record, it is apparent that initially, there were episodes of
maladjustment between the parties which could be taken as
normal wear and tear of the matrimonial life. These episodes
were recurring and got spread throughout the period for which
the parties lived together. It is understandable that it takes time
for the newly wedded couple to adjust with each other and the
family members of the spouse, specifically when the parties are
residing in a joint family. Subsequently, the situation aggravated
in the marital life of the parties with the occurrence of the
incident dated 12.04.2010 when respondent abruptly left the
matrimonial house which is a grave and weighty incident and
cannot be ignored or brushed aside. Thereafter the situation
worsened as the respondent joined back the matrimony house
after about 21/2 months when vigorous efforts were made by the
petitioner to bring her back. Moreover, she joined the
matrimonial house after dictating certain conditions. The
respondent since beginning was not interested to live in a joint
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family but wanted to live separately. Her parents supported her
and they equally insulted the petitioner time and again when he
made efforts to make the respondent come back in the conjugal
fold. More so, the respondent used to often go to her parents'
house. So much so, immediately after her delivery, she wanted to
go to her parental house and when it was objected by the
petitioner and his mother, major quarrel occurred between the
two families. Thus, a healthy relationship could not develop
between the parties. Ultimately, due to the conduct and
behaviour of the respondent, the conjugal relationship was
snapped. On complete consideration of matrimonial life of the
parties, petitioner has been able to prove mental pain and agony,
suffered by him and that it became difficult for him to live with
the respondent.
Accordingly, issue no. 1 is decided in favour of the petitioner
and against the respondent.
RELIEF
55. In view of the findings on issue no. 1, the facts &
circumstances of the case and the foregoing discussion, the
petition is allowed. The marriage between the petitioner/husband
Deepak Bhardwaj and respondent/wife Bharti Bhardwaj is
dissolved by a decree of divorce on the ground of cruelty as per
section 13(1) (ia) of Hindu Marriage Act, 1955 w.e.f, 21.11.2019,
No order as to costs. Decree sheet be prepared accordingly. File
be consigned to Record Room.
8. In support of the appeal, learned counsel for the appellant submits that
the decree of divorce was granted by the Family Court by blindly accepting
the bald statements made by the respondent/husband, despite none of them
having been proved by the respondent using cogent and reliable evidence.
Even though the burden of proof rested with the respondent to prove the
allegations of cruelty, he failed to produce any evidence on that aspect,
barring his own self-serving statements which were not corroborated by
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any witness. He, therefore, prays that the impugned judgment which relies
entirely on such unsupported statements, ought to be set aside.
9. We have considered the submission of learned counsel for the
appellant and perused the record. Both the parties had accused each other
of cruelty in the Court below, but the appellant is aggrieved that the learned
Family Court relied solely on the testimony of the respondent to hold her
guilty of inflicting cruelty upon him and his family. The appellant has also
assailed the judgment for failing to deal with the allegations of cruelty that
she had raised against the respondent.
10. The primary ground adopted by the Family Court to hold the
appellant guilty of cruelty was that, notwithstanding the reciprocal
allegations of cruelty, she had failed to adduce any evidence in support of
her allegations and cross-examine the respondent on those aspects or the
detailed narration of incidents that he had brought on record to establish
cruelty on her part. In support of his allegations of cruelty, it appears that
the respondent had placed complete descriptions of these incidents, replete
with time and place of occurrence, before the Family Court.
11. Now, given that matrimonial disputes rarely involve production of
concrete evidence in documentary or audio-visual form, and mostly
proceed on the relative strength of the opposing allegations made by the
parties, the entire process of leading and recording evidence has a
significant role to play in establishing one's case. Thus, notwithstanding
her denials in the written statement, the appellant was expected to properly
and specifically cross-examine the respondent to prove her allegations of
cruelty against him and disprove those he had levelled against her. The
importance of properly discharging this function of cross-examination was
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discussed by the Supreme Court in the following paragraphs of its decision
in Rajinder Pershad Vs. Darshana Devi (2001) 7 SCC 69:
"4. The only point urged albeit strenuously on behalf of the
appellant by Mr P.S. Mishra, the learned Senior Counsel is that as
there has been no valid service of notice, so all proceedings taken
on the assumption of service of notice are illegal and void. He has
invited our attention to the judgment of the learned Rent Control
Tribunal wherein it is recorded that Exhibit AW 1/6 dated 5-8-1986
was sent by registered post and the same was taken by the postman
to the address of the tenant on 6-8-1986, 8-8-1986, 19-8-1986 and
20-8-1986 but on those days the tenant was not available; on 21-8-
1986, he met the tenant who refused to receive the notice. This
finding remained undisturbed by both the Tribunals as well as the
High Court. Learned counsel attacks this finding on the ground that
the postman was on leave on those days and submits that the
records called for from the post office to prove that fact, were
reported as not available. On those facts, submits the learned
counsel, it follows that there was no refusal by the tenant and no
service of notice. We are afraid we cannot accept these
contentions of the learned counsel. In the Court of the Rent
Controller, the postman was examined as AW 2. We have gone
through his cross-examination. It was not suggested to him that
he was not on duty during the period in question and the
endorsement "refused" on the envelope was incorrect. In the
absence of cross-examination of the postman on this crucial
aspect, his statement in the chief examination has been rightly
relied upon. There is an age-old rule that if you dispute the
correctness of the statement of a witness you must give him
opportunity to explain his statement by drawing his attention to
that part of it which is objected to as untrue, otherwise you cannot
impeach his credit. In State of U.P. v. Nahar Singh (1998) 3 SCC,
a Bench of this Court (to which I was a party) stated the principle
that Section 138 of the Evidence Act confers a valuable right to
cross-examine a witness tendered in evidence by the opposite
party. The scope of that provision is enlarged by Section 146 of the
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Evidence Act by permitting a witness to be questioned, inter alia, to
test his veracity. It was observed: (SCC p. 567, para 14)
"14. The oft-quoted observation of Lord Herschell, L.C.
in Browne v. Dunn [(1893) 6 R 67 (HL)] clearly elucidates the
principle underlying those provisions. It reads thus:
'I cannot help saying, that it seems to me to be absolutely
essential to the proper conduct of a cause, where it is
intended to suggest that a witness is not speaking the truth
on a particular point, to direct his attention to the fact by
some questions put in cross-examination showing that that
imputation is intended to be made, and not to take his
evidence and pass it by as a matter altogether
unchallenged, and then, when it is impossible for him to
explain, as perhaps he might have been able to do if such
questions had been put to him, the circumstances which, it
is suggested, indicate that the story he tells ought not to be
believed, to argue that he is a witness unworthy of credit.
My Lords, I have always understood that if you intend to
impeach a witness, you are bound, whilst he is in the box, to
give an opportunity of making any explanation which is
open to him; and, as it seems to me, that is not only a rule of
professional practice in the conduct of a case, but it is
essential to fair play and fair dealing with witnesses.'
(emphasis supplied)
12. Although the appellant, in the grounds adopted in the appeal, has
assailed the reliance of the learned Family Court on the decision in State of
U.P. v. Nahar Singh (1998) 3 SCC 561 to contend that the same was a
criminal case and the precedent arising therefrom could not apply to cross
examinations in matrimonial proceedings, which are civil proceedings by
nature, there is no merit to this opposition; especially in the light of the
observations of the Supreme Court in Darshana Devi's case which was a
civil proceeding. In fact, the standard of proof in a matrimonial proceeding-
which is also in the nature of a civil proceeding is not as strict, as in
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criminal proceedings. Thus, the case is required to be proved on
preponderance of probabilities and not the legal standard of being beyond a
reasonable doubt. Keeping in view the aforesaid, it is evident that there was
a crucial responsibility placed on the shoulders of the appellant which was
to ensure that she challenged the specifics of the allegations raised by the
respondent and establish their lack of veracity. Paragraphs 44 to 46 of the
impugned judgment clearly show that the appellant had not cross-examined
the respondent/husband on these important aspects, and, thus, completely
failed to draw out the facts as claimed by her. In fact, even before us, the
appellant, other than contending that the onus of proving cruelty rested
upon the respondent, has failed to provide any cogent reasons for failing to
cross-examine the respondent in support of her own case, or to challenge
his allegations of cruelty. It is a settled proposition of law that the Court
would normally accept unchallenged and uncontroverted assertions of fact.
The failure of the appellant to effectively cross-examine the respondent
shows that she neither seriously challenged his version of the factual
position, nor established her own version. Therefore, in our view, the
Family Court was justified in accepting the unrebutted testimony of the
respondent.
13. When we view this in addition to the fact that in her written statement,
the appellant had admitted to having levelled false allegations against the
respondent and his family under the DV Act, we find there were plenty of
holes in the appellant's story. Her feeble explanation for this ill-thought out
act of falsely implicating the respondent and his family was that the same
was not done malevolently, but only with an intention to ensure that the
parties were sent to counselling in order to settle their disputes. That
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explanation barely comes to the aid of the appellant considering that the
Supreme Court in K. Srinivas Rao Vs. D.A. Deepa 2013 III AD (SC) 458
has already held that any act of making unfounded complaints to the police
shall be treated as an act of mental cruelty. The relevant extracts of this
decision read as under:
"14. Thus, to the instances illustrative of mental cruelty noted in Samar
Ghosh, we could add a few more. Making unfounded indecent
defamatory allegations against the spouse or his or her relatives in the
pleadings, filing of complaints or issuing notices or news items which
may have adverse impact on the business prospect or the job of the
spouse and filing repeated false complaints and cases in the court
against the spouse would, in the facts of a case, amount to causing
mental cruelty to the other spouse.
xxx
22. We need to now see the effect of the above events. In our opinion, the
first instance of mental cruelty is seen in the scurrilous, vulgar and
defamatory statement made by the respondent-wife in her complaint
dated 4/10/1999 addressed to the Superintendent of Police, Women
Protection Cell. The statement that the mother of the appellant-husband
asked her to sleep with his father is bound to anger him. It is his case
that this humiliation of his parents caused great anguish to him. He and
his family were traumatized by the false and indecent statement made in
the complaint. His grievance appears to us to be justified. This complaint
is a part of the record. It is a part of the pleadings. That this statement is
false is evident from the evidence of the mother of the respondent-wife,
which we have already quoted. This statement cannot be explained
away by stating that it was made because the respondent-wife was
anxious to go back to the appellant-husband. This is not the way to win
the husband back. It is well settled that such statements cause mental
cruelty. By sending this complaint the respondent-wife has caused
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mental cruelty to the appellant- husband.
24. In our opinion, the High Court wrongly held that because the
appellant-husband and the respondent-wife did not stay together there is
no question of the parties causing cruelty to each other. Staying together
under the same roof is not a pre- condition for mental cruelty. Spouse
can cause mental cruelty by his or her conduct even while he or she is
not staying under the same roof. In a given case, while staying away, a
spouse can cause mental cruelty to the other spouse by sending vulgar
and defamatory letters or notices or filing complaints containing
indecent allegations or by initiating number of judicial proceedings
making the other spouse‟s life miserable. This is what has happened in
this case.
xxx
28. In the ultimate analysis, we hold that the respondent-wife has
caused by her conduct mental cruelty to the appellant- husband and the
marriage has irretrievably broken down." (Emphasis Supplied)
14. Applying the aforesaid ratio of law, there can be no doubt about the
fact that appellant's act of lodging serious complaints against the
respondent and his family under the DV Act on false grounds was designed
to cause him harm and amounted to mental cruelty. Her explanation, in
view of this legal position, does not redeem her. At the same time, although
this Court remains cognisant to the fact that a pragmatic and not a pedantic
approach ought to be adopted in proceedings of such nature by keeping the
interest of the minor daughter in mind, this is not a case where the marital
relations between the parties can be salvaged in any manner; neither of
them are interested in staying with the other. In this regard, before us as
well as the learned Family Court, the appellant has not denied that since
November 2011, when the parties had last resided together, she has made
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absolutely no effort to re-join the respondent's company.
15. For the aforesaid reasons, we are unable to find any infirmity with the
findings of the learned Family Court that the respondent had suffered
mental pain and agony at the hands of the appellant or its decision to
dissolve the marriage between the parties under Section 13(1)(ia) of the
HMA.
16. The appeal is, accordingly, disposed of.
REKHA PALLI, J
VIPIN SANGHI, J
FEBRUARY 3, 2021/kk
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