Delhi High Court
Shweta Khurana vs Vinay Khurana on 18 February, 2022
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 09.12.2021
Pronounced on: 18.02.2022
+ MAT.APP.(F.C.) 213/2018 & CM APPL. 3289/2021
VINAY KHURANA .....Appellant
Through: Appellant-in-person
versus
SHWETA KHURANA .....Respondent
Through: Mr. Naman Joshi, Mr. Guneet Sidhu,
Adv. with respondent-in-person
+ MAT.APP.(F.C.) 231/2018
SHWETA KHURANA .....Appellant
Through: Mr. Naman Joshi, Advocate
versus
VINAY KHURANA .....Respondent
Through: Appellant-in-person
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENTOFTHECOURT
1. MAT. APP. (F.C.) 213/2018 has been filed by the appellant-husband
Vinay Khurana (hereinafter referred to as "appellant") challenging the
judgment dated 02.07.2018 passed by the Family Court, Shahdara
District, wherein the Family Court has granted a relief of Judicial
Separation, instead of the relief of divorce-as had been sought by the
appellant.
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2. On the other hand, MAT. APP. (F.C.) 231/2018 has been filed by the
respondent-wife - Shweta Khurana (hereinafter referred to as
"respondent") challenging the findings returned by the Family Court,
Shahdara District against the respondent in the said judgment.
3. The admitted facts are as under:
(a) The marriage of the parties took place on 14.04.2006 according
to the Hindu rites and ceremonies. One girl child was born out
of the wedlock on 23.09.2007, who is in the custody of the
respondent.
(b) The appellant filed the petition for divorce on 13.07.2012, on
the ground of cruelty under section 13(1)(ia) of the Hindu
Marriage Act.
(c) The parties have been staying separately since 29.05.2009.
There are conflicting statements placed before us as to the
reasons why the appellant and the respondent have been staying
separately since 29.05.2009. The appellant has levelled various
allegations against the respondent, for ignoring him and his
family members; giving importance to her own family while
avoiding to perform her matrimonial obligations; excessively
talking on the phone with her family members at odd hours of
the night; showing a non-cooperative and disrespectful attitude
towards the appellant and his parents. The appellant further
alleged that the respondent constantly threatened him and his
family members to desert them, and implicate them in false
cases, amongst others.
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(d) The respondent in her written statement, as well as her appeal,
has denied all the allegations and rather blamed the appellant
for committing physical and mental cruelty on the respondent
for bringing less dowry. The respondent has stated that it was
the appellant, who had thrown her out of the matrimonial house
on 29.05.2009, after giving her beatings, and thereafter, he
never made any efforts to bring her back. The respondent has
stated that she has always been ready and willing to go back to
the house of the appellant, and it is the appellant who is
spoiling their matrimonial life.
(e) On 19.08.13 the Family Court granted Rs.10,000/- per month to
the respondent and the minor child as an interim maintenance.
4. On 03.08.2013, the Family Court framed the following issues:
(a) Whether the respondent has, after solemnization of
marriage, treated the petitioner with cruelty? OPP;
(b) Relief.
5. In order to prove the case, the appellant has examined himself as
PW-2, and his father Shri Om Prakash Khurana as PW-5. The
appellant also examined Shri Khairati Lal, (Uncle of the appellant) as
PW-1, Shri Rakesh Bawa, (Brother-in-law of the appellant) as PW-3,
Shri Anurag Pahuja, (close friend of the appellant) as PW-4, and Smt.
Mamta Mehra, (close friend of the appellant) as PW-6 - who had
contacted respondent and had gone to her house on different
occasions to make her understand and bring her back to the
matrimonial home. On the other hand, the respondent examined
herself as RW-1 and her brother Lucky, as RW-2.
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6. After discussing the entire evidence on record, the Family Court in the
impugned judgment has held as under:
"However, from the evidence led it is clear that that it was the
respondent who left the matrimonial home without any
sufficient reasons. In fact, she wanted to live with the petitioner
in a separate house but not in the joint family. She always
wanted the petitioner to separate himself from his parents and
after taking share in the joint family, purchase separate
property. Petitioner always wanted to live with the respondent
but it was also not possible for him to ignore his parents.
Petitioner had made various efforts for the compromise and to
bring her back the respondent to this house but the adamant
attitude of family member of the respondent created hurdles.
Respondent was under full control and emotional pressure of
her father and brother who were the real instrumental in
damaging the matrimonial relations of the parties and they did
not want to get the matter settled for their own ulterior motive
so that respondent remain in their house and take care of them
and other younger unmarried sisters. The act and conduct of
the respondent amounted to desertion of the petitioner as well
as cruelty upon him. However, I am of the view that if the
respondent comes out of pressure of her father and brother,
then the parties still can live together because petitioner
always wanted that respondent should come back to him and
even lastly in the court on 2-4-2018 he agreed to take her
from the court room itself. I still feel that good sense can
prevail over the respondent in future and she can remove
pressure of her brother and father from her mind and can join
the company of the petitioner at least for the welfare and sake
of the child without insisting to live in a separate house after
going against the wishes of her brother and father. Even if the
act, conduct and behaviour of the respondent amounts to
desertion and cruelty committed upon the petitioner but she was
doing the same under pressure of her family members against
whom she cannot revolt and apparently she has lost her own
thinking power to determine what is wrong and what is right.
Respondent is in fact doing what is asked by her family
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members without applying her own mind. Counsel for the
respondent rightly relied upon the case law Dastane vs.
Dastane AIR 1975 SC 1534 to show that in the present
situation it is not a fit case where divorce should not be
granted but instead relief of judicial separation can be given.
This issue is accordingly decided against the respondent and
in favour of the petitioner". (emphasis supplied)
7. While holding that the respondent-wife was guilty of matrimonial
misconduct, the Family Court was of the opinion that respondent, in
fact, was doing what was asked by her family members, without
applying her independent mind. The Family Court, thus, after relying
on Dastane (supra), came to the conclusion that while the grounds of
cruelty and desertion were attracted and fully proved, it was not a fit
case where divorce should be granted and, instead, granted judicial
separation. In addition, the respondent was advised to think again,
independently, without any pressure of her family members, in order
to settle and re-establish her matrimonial home.
8. The appellant has assailed this judgment, primarily, on the following
grounds:
(a) The Family Court has found both desertion and cruelty in
favour of the appellant and against the respondent, but has
committed an illegality by not granting the decree of divorce in
favour of the appellant, when that was the relief sought in the
petition. The appellant had the option to choose one, or the
other relief i.e. judicial separation, or divorce. Since the
appellant had chosen the relief of divorce, the same could not
have been substituted by the Family Court, on its own, as they
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are both qualitatively different reliefs, having completely
different ramifications in law and different consequences for
the future lives of the parties.
(b) The parties have been living separately since 2009 - for a
period of more than 12 years now, and hence the bond and the
golden thread of matrimony between them has been severely
destroyed beyond repair. In these circumstances, the decree of
divorce should have been passed by the Family Court.
(c) The marriage between the parties is dead emotionally and
practically, and there is no chance of the parties reuniting and
cohabitating together, and thus the continuance of such a
marriage would, in itself, amount to cruelty to both the parties.
9. On the other hand, the learned counsel for the respondent has argued
that the normal friction and discord of a matrimonial relationship has
been construed as cruelty by the Family Court. None of the instances
mentioned in the divorce petition, and proved on record, can be said
to be instances constitute cruelty. At best, they are instances of
normal wear and tear and disharmony in a matrimonial relationship.
Learned counsel for the respondent has further submitted that the
audio recording of the conversation between the appellant and the
respondent, without the consent of respondent, is an illegality, for
which he relied upon Rayala M. Bhuvaneswari v. Nagaphanende
Rayala AIR 2008 AP 98. He submitted that the appellant interacted
with the respondent with the premeditated intention of divorce, and
for the said purpose made recordings of the conversation between him
and the respondent, post-separation of the parties. Learned counsel
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for the respondent has further submitted that the conversations
between the appellant and the respondent could not be relied upon in
the absence of an affidavit under Section 65B of the Indian Evidence
Act, 1872. Lastly, learned counsel for the respondent has submitted
that all the witnesses, namely, Shri Khairati Lal/PW-1, Shri Rakesh
Bawa/PW-3, Shri Anurag Pahuja/PW-4, Smt. Mamta Mehra/PW-6 &
Shri Om Prakash/PW-5 are not credible, and that their testimony
cannot be relied upon.
10. We have heard the learned counsel for the parties and have perused
the findings of the Family Court.
11. We may first consider the issue whether finding of cruelty returned by
the Family Court, against the respondent-wife calls for interference.
12. In MAT APP (F.C) 231/2018, and in the Written Statement in HMA
165/2018 before the Family Court - as well as the evidence by way of
affidavit, the respondent has stated that the instances cited by the
appellant can be said to be normal wear and tear of the marriage, and
do not amount to cruelty. What is relevant, for our adjudication is that
the respondent has categorically stated in her affidavit of evidence
that "she was subjected to physical and mental cruelty on account of
bringing less dowry". Her brother RW-2 has also in his affidavit by
way of evidence stated that "respondent was turned out of her
matrimonial home by the petitioner and his family members on
29.05.2009 due to the non-fulfillment of dowry demands". However,
the affidavits of evidence of both respondent and her brother are
totally silent on the date, time, and place of demand of dowry, or what
were the demands. The respondent and her family members have
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never lodged any complaint to the police, or to any authority in this
regard. Thus, her version that she was thrown out of her matrimonial
home, or that the members of the appellant's family tried to take her
life - in respect whereof there was no complaint or evidence, is
difficult for us to accept. In fact, RW-2 has stated that the appellant
and his family members had given beatings to the respondent several
times for the lack of dowry. Pertinently, respondent No.2, in his
cross-examination has stated that no such demand was made in his
presence, nor any demand was fulfilled by his family, and no beatings
of the respondent-by the appellant or his family members, took
place in his presence.
13. At one stage, the respondent put suggestions to the witnesses of the
appellant, trying to show that the appellant had demanded a car as
dowry, but since no such averment was made in the Written
Statement, the suggestion, itself, was irrelevant. Even otherwise, the
respondent did not disclose any articles demanded, which were
fulfilled, or which were left unfulfilled. Hence, the allegations of
demand of dowry by the appellant or his family members do not
inspire any confidence, and remain unsubstantiated.
14. The Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3 SCC
786 has held as follows:
"14. It cannot be in doubt that in an appropriate case the
unsubstantiated allegation of dowry demand or such other
allegation has been made and the husband and his family
members are exposed to criminal litigation and ultimately if it
is found that such allegation is unwarranted and without basis
and if that act of the wife itself forms the basis for the husband
to allege that mental cruelty has been inflicted on him,
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certainly, in such circumstance, if a petition for dissolution of
marriage is filed on that ground and evidence is tendered
before the original court to allege mental cruelty it could well
be appreciated for the purpose of dissolving the marriage on
that ground...."
15. In Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Supreme
Court has held as follows:
"No uniform standard can ever be laid down for guidance, yet
we deem it appropriate to enumerate some instances of human
behaviour which may be relevant in dealing with the cases of
'mental cruelty'. The instances indicated in the succeeding
paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make
possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life
of the parties, it becomes abundantly clear that situation is such
that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes
the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by
the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of
the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one
spouse actually affecting physical and mental health of the
other spouse. The treatment complained of and the resultant
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danger or apprehension must be very grave, substantial and
weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of
the married life which happens in day-to-day life would not be
adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to
cruelty. The ill conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent that
because of the acts and behaviour of a spouse, the wronged
party finds it extremely difficult to live with the other party any
longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
sterilisation without medical reasons and without the consent
or knowledge of his wife and similarly, if the wife undergoes
vasectomy or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the spouse
may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical
incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to
cruelty.
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(xiv) When there has been a long period of continuous
separation, it may be fairly concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie the law in
such cases does not serve the sanctity of the marriage; on the
contrary, it shows scant regard for the feelings and emotions of
the parties, it may lead to mental cruelty"
16. Learned counsel for the respondent also argued that there are no
specific instances of cruelty, and that the instances relied upon by the
appellant, are instances of "friction". The term 'mental cruelty' is a
broad term, and there can be no particular set parameter to determine
it. As held in Samar Ghosh v Jaya Ghosh (supra), there is no
straitjacket formula for determining cruelty. Thus, the conduct of the
parties - as established, would need examination to arrive at the
conclusion, whether the same tantamount to cruelty.
17. On the aspect of cruelty, the Family Court has returned the following
findings:
"However, from the evidence led it is clear that that it was the
respondent who left the matrimonial home without any
sufficient reasons, In fact, she wanted to live with the petitioner
in a separate house but not in the joint family. She always
wanted the petitioner to separate himself from his parents and
after taking share in the joint family, purchase separate
property. Petitioner always wanted to live with the respondent,
but it was also not possible for him to ignore his parents.
Petitioner had made various efforts for the compromise and to
bring back the respondent to his house but the adamant attitude
of family members of the respondent created hurdles
Respondent was under full control and emotional pressure of
her father and brother who were the real instrumental in
damaging the matrimonial relations of the parties and they did
not want to get the matter settled for their own ulterior motive
so that respondent remain in their house and take care of them
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and other younger unmarried sisters. The act and conduct of
the respondent amounted to desertion of the petitioner as well
as cruelty upon him."
18. As regards the respondent leaving the matrimonial home, the Family
Court has observed that :
"Not only this court but also another court of MM tried to get
the matter compromised between the parties on various
occasions but most of the times, it was the respondent who
showed disinterest in going back to matrimonial home. Order
sheet dated 15-9-2015 of this case shows that once it was
agreed upon between the parties that respondent shall search
for a separate house and inform the petitioner about it and
thereafter after finalization of the said house, parties will live
together. However, no steps were taken by the respondent in
this regard. Again order sheet dated 5-3-2018 point out that
respondent was not ready to talk for any settlement and wanted
to contest the case. One maintenance case between the parties
was once pending in Mahila Court and order Ex. RWl/P-2
dated i4-3-2012 shows that it was the respondent who did not
wish to go to the mediation centre for settlement.
The action of the petitioner to raise query from the respondent
why she had gone to her parent's house and coming late at
about 10 p.m. cannot be held as improper especially when she
had gone there one day before also. RW-2 in his cross
examination denied giving of beatings by the petitioner to
respondent in his presence which is contrary to the allegations
made in his affidavit, It is not explained how and in which
manner beatings were given and to what an extent. Whether the
physical assault was of such nature that respondent was
compelled to leave the house is also not explained. There is no
medical to show that any physical assault was committed.
Hence, the manner of leaving the, matrimonial house by the
respondent as alleged by her cannot be accepted as correct.
There is no ground to disbelieve the petitioner that she left the
house her own merely on the ground of making query about the
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reasons of going to her parent's house. The action on the part
of the respondent amounts to desertion.
There is no hesitation to say that father and brother of the
respondent were the main instrumental in damaging the
relationship of the petitioner and respondent. They for their
own convenience and benefit were unnecessary stopping the
respondent to go back to her matrimonial home and were
pressurizing or influencing her to desert the petitioner.
Apparently, respondent fully understood the tricks of her family
members as per admitted telephonic conversation taken place
with the petitioner but due to their influence or emotional
pressure was hesitating to join the company of the petitioner.
Her conduct shown even during the pending proceedings not to
live with the petitioner or even to settle the matter also point
out that she was intentionally deserting the petitioner. Even
respondent admittedly had not sent any reply to the legal notice
Ex. PW2/5 sent by petitioner or anything in writing to show her
willingness to join matrimonial house.................."
19. It is also an admitted case that the appellant and the respondent
separated on 29.05.2009. It is further admitted, that the father of the
respondent used to be abusive towards the appellant, as a result of
which appellant was constrained to file a civil suit against the father
of the respondent. The matter was compromised on 13.09.2011, and
the father of the respondent had made a statement as under:
"I shall not interfere in the matrimonial life of my daughter and
I further undertake that I shall not hurl abuses to the plaintiff
and I shall not make any telephonic call to the Plaintiff
(Petitioner herein) and the Plaintiff should also not visit my
house without my permission and shall also not make a
telephonic call to me."
20. As per this statement, it was the father of the respondent, who forbade
the appellant from coming to his house or making any calls. The onus,
therefore, shifted on the respondent to show her intent, and the effort
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that she made to re-join company of the appellant. There is no
evidence on record to show any effort made by the respondent to re-
join the company of the appellant. After 29.05.2009, no petition
under Section 9 of the Hindu Marriage Act, 1955 -for Restitution of
Conjugal Rights, was filed by the respondent. In fact, the appellant
has led the evidence of Shri Khairati Lal/PW-1, Shri Rakesh
Bawa/PW-3, Shri Anurag Pahuja/PW-4, Shrimati Mamta Mehra/PW-
6 & Shri Om Prakash/PW-5, who all gave evidence to the effect that
they have tried to get the respondent back to her matrimonial home
and, despite their best efforts, they could not succeed.
21. Shri Khairati Lal/PW-1, by way of his evidence affidavit stated as
under:
"4. That deponent says that the brother of the respondent namely
Lucky Malhotra came and flatly refused to send the
respondent with the deponent/at her matrimonial home.
Then on persuasion of the deponent, Shweta herself came
there and the deponent with folded hands requested her to
come back at her matrimonial home and asked her if any
type of difficulty, she is facing in coming back, then the
respondent bluntly refused-to come back to her matrimonial
home."
22. Shri Rakesh Bawa/PW-3, by way of his evidence affidavit also stated:
"2. That deponent says that or. 29/05/2005, the deponent had talk
with the father of the respondent and requested him not to
ruin the matrimonial life of the petitioner and the
respondent, but the father of the respondent didn't talk in
good manner, then in the evening he went at his home and
again cleared about the position of both the parties. The
deponent asked Shweta/respondent that whether he has any
problem from the petitioner, but she replied that he has no
problem from the petitioner rather, he praised about the
behaviour of the petitioner, but the father of the respondent
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remarked that "MAIN APNI LADKI ,K0 GHAR PAR
RAKHONGA AUR YE MERE GHAR KA KAAM KAREGI,
MAIN APNI PROPERTY ISKE NAAM KAR DOONGA AUR
YE AARAM SE RAHEGI, BUT I WILL SEND HER BACK
TO HER MATRIMONIAL HOME ONLY IF VINAY WILL
GIVE HIS SHARE IN PROPERTY IN THE HANDS OF
SHWETA" and started abusing the deponent in filthy
language and asserted that it will make no difference, if his
daughter remains with him for the years together.
6. Father of Shweta had never met Vinay in my presence. It is
wrong to suggest that even today Shweta is ready to live
with Vinay. (Vol. The kind of language used by her brother
and father on 29.06.2009 showed that they were not
interested to sent her to her matrimonial home;). It is wrong
to suggest that after 29.09.2009 I had called her father
asking him to settle the dispute by divorcing both the parties
after negotiating settlement amount and during negotiations
her brother. Lucky will not sit. It is wrong to suggest that
her father had told me that I should try patch up both the
spouses and persuade them to live together. (Vol. Her father
had told me to stay out of all this)."
23. Shri Anurag Pahuja/PW-4, also deposed:
"3. That in march 2010 deponent persuaded to the respondent
to rejoined her matrimonial home then the respondent
replied that petitioner/Vinay is a very good person and his
no problem from Vinay but till his parent in laws did not
full, fill her condition she will not rejoined her matrimonial
home.
4. That deponent put his all efforts to convince respondent that
she should not spoil her matrimonial home, but she flatly
refused to come back -rather, threatened to take legal action
against the petitioner and his parents and asked the
deponent that he is 10th person from petitioner's side who
has trying to conveyance her to come back at her
matrimonial home."
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24. Smt. Mamta Mehra/PW-6 also deposed :
"I came to know about the dispute between the (parties first time
on 29.05.2009. I along with my husband had gone to the house of
the respondent after 5-6 days of 29.05.2009 to "find out the
reasons of separation. (Again said : Had gone to the house of the
petitioner and not of the respondent). We had not gone to the
house of the respondent as I had called her 3-4 times on phone
but she disconnected die phone every time."
25. Shri Om Prakash/PW-5, father of the appellant also has stated as
under:
"10. That on 5.06.2009 deponent along with Sh. Khairati Lal
Batra and his wife Neelam went to the parental home of the
respondent to bring her back to the matrimonial home, but the
respondent made a call to her father and informed him that the
deponent along with his relatives have reached their home and
she asked-her father to come immediately. After receiving the
call, the respondent's father; went to the residence of. Sh.
Rakesh Bawa and then, wife of Mr. Bawa - Lalita Baw
telephonically informed the deponent that father of respondent
has come to their home and deponent should leave the parental
home of respondent with their relatives. Mrs. Lalita Bawa
further informed that if they won't leave the parental home of
the respondent, they will face the consequences as all of them
have visited the parental house of respondent without any
intimation. Then in-front of deponent Mr. Khairati Lal
persuaded the respondent to come back at her matrimonial
home but she bluntly refused for the same and her brother
Lucky Malhotra said that he will get his sister remarried but
will not send her back to her matrimonial home.
He misbehaved with the deponent and other people along with
him."
26. All the appellant's witnesses made efforts to repair the matrimonial
bond of the parties. They endeavoured to help the parties to live
together and solve their differences, and there is no reason to
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disbelieve their statements, or assume them to be untrustworthy.
They are not "interested witnesses", whose testimony should be
discarded. They have been cross-examined, and nothing has come out
from their cross-examination, to throw any doubt about their
credibility. Their evidence is also corroborated by documentary
evidence viz. the statement made by the respondent's own father in
the appellant's suit, on 13.09.2011, and the lack of intent to resume
cohabitation exhibited by the respondent.
27. The respondent's attitude, reluctance and obstinacy to join the
appellant in the matrimonial home, despite his, his relatives and
friends' effort to bring her back - also amount to cruelty. The
respondent-wife seemingly left her matrimonial home for no reason;
levelled various false and serious allegations against the appellant and
her in-laws, and; refused to cohabitate or compromise with appellant.
Such indifference on the part of the respondent would have caused
substantial anguish and agony to the appellant. The appellant did not
get married to the respondent to lead a bachelor's life. He got married
in the hope, and with the expectation, of leading a happy and fulfilling
married life. The respondent, by not joining him, has denied him
conjugal satisfaction. He has been denied the companionship that he
would have been legitimately and rightfully hoping to experience with
the respondent.
28. Further, despite the decree of judicial separation, the respondent-wife
never even attempted to re-join the company of her husband, even
temporarily. The respondent-wife - in the impugned judgment, was
asked to give her marriage another chance, and think independently of
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her family members. However, there has been no positive move on
the part of the respondent.
29. The appellant husband did all that he could, to cohabitate with his
wife. However, the respondent-wife refused to cohabitate with him,
and made false allegations of dowry demand without any proof
whatsoever, and left the matrimonial home without any reason and
refused to return after that. Thus, it is evident to us, that she
perpetrated mental cruelty upon the appellant, and that nothing
remains in this marriage.
30. We may now turn to the legality of the relief granted by the Family
Court of judicial separation to the appellant, instead of a decree of
divorce.
31. Under the scheme of the Hindu Marriage Act, 1955 the ambit and the
scope of Judicial Separation and Divorce is qualitatively different.
Judicial separation is a completely different relief that the aggrieved
spouse may seek against the other, under Section 10 of the Hindu
Marriage Act, which reads as under:
"10. Judicial separation.--[(1) Either party to a marriage,
whether solemnised before or after the commencement of this
Act, may present a petition praying for a decree for judicial
separation on any of the grounds specified in sub-section (1) of
section 13, and in the case of a wife also on any of the grounds
specified in sub-section (2) thereof, as grounds on which a
petition for divorce might have been presented.]
(2) Where a decree for judicial separation has been passed, it shall
no longer be obligatory for the petitioner to cohabit with the
respondent, but the court may, on the application by petition of
either party and on being satisfied of the truth of the statements
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made in such petition, rescind the decree if it considers it just
and reasonable to do so." (emphasis supplied)
32. Thus, the aggrieved spouse may, instead of seeking the relief of
divorce, seek a decree of judicial separation on the same grounds on
which he/she may seek divorce. The law gives an option to the
aggrieved spouse/petitioner to seek either of the two reliefs. While
judicial separation does not end the matrimonial relationship and the
marriage is preserved - after a declaration is made establishing the
matrimonial misconduct by the other spouse, and it entitles the
aggrieved spouse/petitioner to deny conjugal relationships to the other
spouse/respondent, a decree of Divorce puts an end to the jural
relationship of marriage between the parties, thus liberating them from
their marital bond. Whereas a decree of judicial separation can be
rescinded by the same court; a decree of divorce can be reversed only
by a judicial order: either in review, or in appeal. If it is passed ex
parte, it may be recalled on an application being made for that
purpose.
33. Thus, when a decree of judicial separation is passed, the aggrieved
spouse is no longer bound to cohabitate with the other, even though,
the matrimonial bond continues to subsist. The parties cannot remarry
during the period of judicial separation, since the status of marriage
subsists. On the other hand, the parties cease to remain husband and
wife, once a decree of divorce is granted, and the parties are free to
remarry once the statutory period of appeal expires, and there is no
restraint order passed by a competent court against remarriage.
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34. Judicial separation and divorce are completely different reliefs-
granted on the same grounds-as contained in Section 13 (1), and in
the case of a wife, also on any of the grounds specified in sub-Section
(2) of Section 13 of the Hindu Marriage Act,1955.
35. The Supreme Court in Hirachand Srinivas Managaonkar v Sunanda
(2001) 4 SCC 125 explained the concept of judicial separation as
follows :
"16. In this connection another question that arises for
consideration is the meaning and import of section 10(2) of the
Act in which it is laid down that where a decree for judicial
separation has been passed it shall no longer be obligatory for
the petitioner to cohabit with the respondent, but the court may,
on the application by petition of either party and on being
satisfied of the truth of the statements made in such petition,
rescind the decree if it considers it just and reasonable to do so.
The question is whether applying this statutory provision to the
case in hand can it be said that the appellant was relieved of
the duty to cohabit with the respondent since the decree for
judicial separation has been passed on the application filed by
the latter. On a fair reading of the sub-section(2) it is clear that
the provision applies to the petitioner on whose application the
decree for judicial separation has been passed. Even assuming
that the provision extends to both petitioner as well as the
respondent it does not vest any absolute right in the petitioner
or the respondent not to make any attempt for cohabitation with
the other party after the decree for judicial separation has been
passed. As the provision clearly provides the decree for
judicial separation is not final in the sense that it is
irreversible; power is vested in the Court to rescind the decree
if it considers it just and reasonable to do so on an application
by either party. The effect of the decree is that certain mutual
rights and obligations arising from the marriage are as it were
suspended and the rights and duties prescribed in the decree
are substituted therefor. The decree for judicial separation
does not sever or dissolve the marriage tie which continues to
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subsist. It affords an opportunity to the spouse for
reconciliation and re-adjustment. The decree may fall by a
conciliation of the parties in which case the rights of
respective parties which float from the marriage and were
suspended are restored. Therefore, the impression that section
10(2) vests a right in the petitioner to get the decree of divorce
notwithstanding the fact that he has not made any attempt for
cohabitation with the respondent and has even acted in a
manner to thwart any move for cohabitation does not flow from
a reasonable interpretation of the statutory provisions. At the
cost of repetition, it may be stated here that the object and
purpose of the Act is to maintain the marital relationship
between the spouses and not to encourage snapping of such
relationship." (emphasis supplied)
36. The Family Court in the impugned judgment observed:
"However, I am of the view that if the respondent comes out of
pressure of her father and brother, then the parties still can live
together because petitioner always wanted that respondent
should come back to him and even lastly in the court on 2-4-
2018 he agreed to take her from the court room itself. I still feel
that good sense can prevail over the respondent in future and
she can remove pressure of her brother and father from her
mind and can join the company of the petitioner, at least for the
welfare and sake of the child without insisting to live in a
separate house after going against the wishes of her brother
and father. Even if the act, conduct and behaviour of the
respondent amounts to desertion and cruelty committed upon
the petitioner but she was doing the same under pressure of her
family members against whom she cannot revolt.........
(8) ISSUE NO.2 (RELIEF) :- In view of the above discussion,
though the case is fully proved by the petitioner and the
divorce grounds of cruelty and desertion are attracted but in
the present facts and circumstances, while allowing this
petition, I am granting the petitioner relief of judicial
separation instead of divorce and giving advice to the
respondent to think again independently without feeling any
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pressure of her family members in order to settle and re-
establish her matrimonial home." (emphasis supplied)
37. The approach of the Family Court in ordering judicial separation,
instead of Divorce is faulty, to our mind. What the Family Court
failed to appreciate is that, firstly, it is for the petitioner- who
approaches the Family Court, to decide whether he/she wishes to
obtain the relief of divorce, or of judicial separation. It is not for the
Court to decide to substitute the relief sought by the petitioner - from
divorce to judicial separation, or vice versa. If the petitioner is able to
establish the ground to seek one or the other of these reliefs, the
Family Court cannot decide for the petitioner, that it is better for
him/her, or the other/respondent spouse, to accept the relief that he/
she has not sought in his/ her petition. The two reliefs of Divorce or
Judicial Separation are not-in that sense, larger or lesser reliefs,
respectively. To test the approach of the Family Court, one may ask:-
if the Family Court was of the view that the respondent-wife may
come out of the influence of her family, could the Family Court have
granted a decree of restitution of conjugal rights under Section 9 of
the Hindu Marriage Act, even though the same was never prayed for
by the appellant? In our view, the Family Court could not have done
it, for the simple reason, that the petitioner before it had not sought
that relief. The powers of the Family Court to change the nature of
the relief sought is absent. The Family Court cannot be heard to tell
the petitioner before it, what is "good" for him/her. It may render its
advice to the parties when the matter is pending before it, but when it
comes to adjudication, the Family Court is bound to bear in mind the
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relief sought by the petitioner. If the petitioner has established the
grounds for seeking the relief as sought, he/she should be granted the
same. If not, he/she should be denied the relief sought. Conversely,
the Family Court cannot grant a relief, the statutory grounds for
seeking which, are not established, merely because it feels that that
would be "good" for the parties.
38. Now, we may look at the relief granted in the present case on the
appellant's Divorce Petition. Instead of granting a decree of Divorce-
even though the ground therefor was held established, the appellant
was granted Judicial Separation, in the hope that the respondent will
rejoin the appellant's company. The grant of the said relief is a
contradiction in itself. On the one hand, the Family Court expects the
respondent to come out of the influence of her brother and father, and
resume cohabitation with the appellant, but, on the other hand, fails to
appreciate that the respondent cannot seek to resume cohabitation
with the appellant, when the decree of Judicial Separation is operating
against her, unless the appellant consents. So far as the appellant is
concerned, he had expressed his intention to end the relationship, not
only by filing the Divorce Petition, but also by filing the present
appeal. The Family Court was swayed by the appellant's statement
that he was willing to resume cohabitation with the respondent when
the matter was being heard by the Family Court. But the respondent
did not respond positively, and the appellant never prayed to the
Family Court to amend his prayer to seek a decree of Judicial
Separation. The Family Court should have realised, that if the
respondent has been unable to come out of the influence of her family
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members for the last 13 years, there is very little likelihood of her
doing so in the near future. Moreover, the appellant could not have
been asked to keep waiting, and to put his life on hold, in the hope
that the respondent would change her ways - after 13 long years, and
show her willingness to resume cohabitation with the appellant. The
judgment of the Family Court is seemingly based more on optimism
and hope, rather than the actual factual matrix of the case.
39. The judgment of Dastane (supra) relied upon by the Family Court is
clearly distinguishable, as in Dastane (supra) the petition was filed
seeking annulment of marriage; alternatively for divorce, or, for
Judicial Separation. The annulment was sought on the ground of
fraud, the divorce was sought on the ground of unsoundness of mind,
and judicial separation on the basis of cruelty. On the other hand, the
appellant had only sought to relief of divorce under Section 13(1)(ia)
of the Hindu Marriage Act, 1955.
40. As regards the ground raised by the appellant that the Family Court
has no power to modify an issue on its own, we find that the said
argument is misconceived. There were two issues framed, as
enumerated above. On the first issue, there is a clear finding of the
respondent being guilty of cruelty. However, on the 2nd issue, i.e. the
relief to be granted, the Family Court has decided to grant Judicial
Separation, instead of divorce. We are of the view for the reasons
stated above, and in facts of present case, the relief of Divorce could
not have been denied to the appellant, once the ground of cruelty
under Section 13 (1) (ia) was held to have been established.
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41. We must also take note of the fact that the parties have been living
separately for over 12 years now, and the marriage has completely
broken down.
42. The Supreme Court in Naveen Kohli v. Neelu Kohli (2006) 4 SCC
558 has observed :
"72. Once the parties have separated and the separation has
continued for a sufficient length of time and one of them has
presented a petition for divorce, it can well be presumed that
the marriage has broken down. The court, no doubt, should
seriously make an endeavour to reconcile the parties; yet, if
it is found that the breakdown is irreparable, then divorce
should not be withheld. The consequences of preservation in
law of the unworkable marriage which has long ceased to be
effective are bound to be a source of greater misery for the
parties.
73. A law of divorce based mainly on fault is inadequate to deal
with a broken marriage. Under the fault theory, guilt has to
be proved; divorce courts are presented with concrete
instances of human behaviour as they bring the institution of
marriage into disrepute.
74. We have been principally impressed by the consideration that
once the marriage has broken down beyond repair, it would
be unrealistic for the law not to take notice of the fact, and it
would be harmful to society and injurious to the interests of
the parties. Where there has been a long period continuous
separation, it may be fairly surmised that the matrimonial
bond is beyond repair. The marriage becomes a fiction,
though supported by a legal tie. By refusing to sever that tie
the law in such cases does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties.
87. The High Court ought to have visualised that preservation of
such a marriage is totally unworkable which has ceased to
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be effective and would be a greater source of misery for the
parties.
88. The High Court ought to have considered that a human
problem can be properly resolved by adopting a human
approach. In the instant case, not to grant a decree of
divorce would be disastrous for the parties. Otherwise, there
may be a ray of hope for the parties that after a passage of
time (after obtaining a decree of divorce) the parties may
psychologically and emotionally settle down and start a new
chapter in life."
43. This court has held in the judgment MAT APP (F.C) 75/2020 titled
'Rahul Kesarwani v. Sunita Bhuyan' that :
"24. It has also been observed by the Supreme Court and other
Courts that no straitjacket formula can be applied to cases
of cruelty in matrimonial dispute. In Samar Ghosh (supra) it
was observed that there can be no fixed parameter in
determining cruelty. In most of the cases, cruelty is inflicted
by one party and felt by another in a variety of
circumstances. What may constitute cruelty in one matter
may not constitute cruelty in another. Each case and
relationship must be viewed separately and its own totality.
25. The matrimonial disputes between a husband and a wife
cannot be expected to, and are incapable of following strict
parameters of evidence. In cases where there are allegations
of cruelty - specially mental cruelty such as Dowry
Demand, violent abusive behaviour, starving the spouse of
affection, resources and emotional support, there can be no
set parameters that the court can follow. Matrimonial issues
are generally confined to the bedroom and the matrimonial
home, away from public eye and gaze. A lot of times these
cases do not have any independent or impartial witnesses.
The doctrine of preponderance of probabilities has to be
applied while evaluating the evidence, and the court must
decide the matter based on the overall picture that emerges
from the undisputed and uncontroverted facts and
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circumstances, and those established by documentary or
other evidence.
26. In the case of Sheenu Mahendru v. Sangeeta, (2019) SCC
Online Utt 376 the Court observed:
"The burden lies upon the respondent to establish the
charge of cruelty. The question is as to what is the standard
of proof to be applied in order to judge whether the burden
has been discharged or not. The rule which governs
matrimonial cases is, that a fact could be established, if it is
proved by a preponderance of probabilities. Proof beyond a
reasonable doubt is a proof of a higher standard, which
generally governs criminal trials or trials involving inquiry
into issues of a quasi- criminal nature. Such proof beyond a
reasonable doubt could not be imported in matters of pure
civil nature especially matrimonial matters."
44. In the present case, the parties lived together only for 3 years, and
have been living separately for more than 12 years now. The period of
separation has left the relationship between the parties beyond repair.
The adamance of the respondent to refuse to cohabitate with the
appellant over the last 12 years shows us that there is nothing
remaining in this marriage, for either party.
45. On a proper consideration of the facts and circumstances of this case,
we are thus of the view that the Family Court erred in not granting the
decree of divorce to the appellant and, instead, granting a decree of
Judicial Separation to the appellant. We, accordingly, set aside the
impugned judgement passed by the Family Court in so far as it grants
a decree of Judicial Separation to the appellant-husband. Further, we
find the respondent guilty of cruelty under Section 13 (1)(ia) of the
Hindu Marriage Act, 1955.
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46. In this view of this matter, we allow the appeal of the appellant-
husband i.e. MAT. APP. (F.C.) 213/2018 and grant a decree of
divorce between the appellant and the respondent. Their marriage
stands dissolved forthwith. The appeal preferred by the respondent-
wife i.e. MAT. APP. (F.C.) 231/2018 is dismissed.
47. As regards the alimony claim of the respondent, and maintenance for
the 14-year old daughter, the respondent is free to avail of the legal
remedies, and nothing said hereinabove shall be construed as an
expression on the merits of such a claim. Parties are left to bear their
own costs.
VIPIN SANGHI, J JASMEET SINGH, J
FEBRUARY 18, 2022
Sahil Sharma
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