Delhi High Court
Indu vs Babu on 29 November, 2023
Author: Sanjeev Sachdeva
Bench: Sanjeev Sachdeva
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 29th November, 2023
+ MAT.APP.(F.C.) 18/2018
INDU ..... Appellant
versus
SUNIL BABU .....Respondent
Advocates who appeared in this case:
For the Appellant: Mr. Siddharth Mittal, Ms. Shilpa G. Mittal, Mr. Kshitiz
Chauhan & Mr. Rishav Vats, Advocates
For the Respondent: Mr. Vikas Sharma, Mr. Surya Singh and Mr. Yash Kumar,
Advocates
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.
1. The appellant by way of present appeal impugns the judgment
dated 20.11.2017, whereby the petition filed by the respondent-
husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955
(hereinafter referred to as the 'Act') seeking dissolution of marriage
on the ground of cruelty has been allowed and a decree of divorce has
been passed.
2. The relevant facts necessary for deciding the present appeal are
that the appellant-wife and the respondent-husband got married on
16.04.2006, as per Hindu Rites and Ceremonies at Gurgaon, Haryana.
After their marriage, the parties co-habited as husband and wife at
Bijwasan, New Delhi. Out of the wedlock, a female child namely,
Diti was born on 24.01.2007.
3. On account of certain disputes and differences that arose
between the parties, the respondent-husband filed a divorce petition
for dissolution of marriage against the appellant-wife in the Family
Court, Tis Hazari Court, Delhi on 19.08.2008 on the ground of cruelty.
4. As per the respondent-husband, the instances of cruelty stated to
have been committed by the appellant-wife, and as pleaded in the
divorce petition are enumerated as follows - (i) the appellant-wife
compelled and forced the respondent-husband to shift to Delhi from
Farukhnagar away from his parents, accordingly, the parties started
residing at a rented accommodation at Bijwasan, Delhi, and yet, the
appellant-wife wanted the respondent-husband to sever his
relationship with his family members; (ii) she would taunt the
respondent-husband and would feel contrite about not having married
his ex-fiancé, namely, Rahul, (iii) the appellant refused to perform her
day to day household chores and other matrimonial obligations when
proposal of her younger sisters' marriage with the younger brother of
the respondent was not acceded to by the family of the respondent;
(iv) the appellant would often leave the matrimonial home without the
permission of the respondent; (v) on 13.07.2008, the respondent left
the matrimonial home and took away all her jewellery and when an
attempt made by the respondent to bring her back to the matrimonial
home failed, a report was lodged with the police by the respondent on
03.08.2008 in respect of her conduct; (vi) On 05.08.2008, the
appellant-wife came back and stayed overnight and again left the next
day after quarrelling with the respondent, however, on the same day at
10:30 p.m, she came back along with her parents, brother and few
musclemen at the native place of the respondent and gave severe
beatings to the old mother of the respondent and threatened to
eliminate the entire family, in respect of which a report was lodged
with the SHO, PS, Farukhnagar but he did not take any action,
therefore, a complaint was made to DCP, Gurgaon and only thereafter,
a report was lodged.
5. The appellant-wife contested the divorce petition and in her
written statement, it was inter alia pleaded that - (i) the respondent
and his family members were not satisfied with dowry and thus, they
harassed the appellant-wife physically and mentally; (ii) on
06.08.2008, when the appellant had come to her matrimonial home at
Farukhnagar with her daughter and insisted on staying there, she was
severely beaten and somehow she managed to run out of the
matrimonial home and went to the Police Station at about 12:30 am
(night) and lodged DDR No.26 dated 07.08.2008, subsequently on the
basis of which, the FIR No.130/2008 came to be registered under
Sections 498A/406/323/506 IPC against the respondent and his family
members viz., Shakuntala Devi (mother-in-law), Raj Kumar @ Tinku
(Devar), Sunita (Sister-in-law) and her husband Raj Kumar (SDO,
Electricity Board); (iii) the respondent himself treated the appellant
with cruelty.
6. On the basis of the pleadings of the parties, the following issues
were framed by the Family Court on 10.09.2009:
(a) Whether the petitioner has been treated with cruelty by the
respondent as alleged? ....OPP
(b) Whether the petition is not maintainable? ...OPR
(c) Whether this Court has no territorial jurisdiction to
entertain the present petition? ...OPR
(d) Whether the petitioner has suppressed material facts and
has not approached this Court with clean hands? ...OPR
(e) Relief
7. The respondent-husband examined himself as PW1 and
tendered his detailed affidavit in evidence [Annexure A-5 (colly.)]
wherein, apart from reiterating the allegations made in the divorce
petition, he deposed in paragraph 24 thereof that a false case of dowry
demand was registered by the appellant on account of which he had to
remain in judicial custody. For ready reference, para 24 of the
respondent's affidavit reads as under:
"24. That the deponent implicated the deponent and his
other family members in a false case of dowry demand being
FIR No. 130/2008 u/s 498/406/323/506/34 IPG
registered at P.S. Farooq Nagar, Gurgaon in acting
connivance and instigation of her family members and due to
the said false case the deponent had to remain in judicial
custody for a substantial period. The Respondent showered
all possible immense cruelties upon the deponent and his other
family members for no valid and cogent reason. ( Copy of
FIR No. 130/2008 is annexed herewith and marked as Exh.
PW-1/C.)"
(emphasis supplied)
8. The respondent/PW1 was cross-examined by the advocate of
the appellant and in response to the specific suggestions/questions put
to the respondent, he stated as under:-
"...It is correct that one FIR bearing No.130/08/13/08/08 U/s
498A, 406, 323, 506, 34 IPC was registered police station
Farukh Nagar at the insistence of my wife against me, my
mother, my brother, my sister and my sister's husband and the
trial arising out of said FIR is pending in the Court of
Gurgaon. I do not know whether my wife was medico legally
examined or not/, I remained in police/judicial custody for 3
days in the said case."....
(emphasis supplied)
9. The appellant examined herself as RW-1 and also examined her
father namely, Hukum Singh as RW-2.
10. The Family Court after perusing the evidence and pleadings
recorded a finding that the assertion that the appellant-wife wanted the
respondent-husband to sever his relation with his family at her
instance and for this reason they started residing at a rented
accommodation at Bijwasan, Delhi has not been substantiated and it is
belied from the statement of PW-1, who admitted that travelling back
and forth from Farukhnagar, Haryana to Rajdhani College, Raja
Garden, Delhi University, New Delhi was very long and time
consuming exercise. It is also recorded by the learned Family Court
that testimony of respondent as PW-1 suggests that respondent was
perhaps over sensitive about his wife having an affair prior to their
marriage and the respondent was piqued by the fact that appellant
would leave the matrimonial home without his consent and thereby
visit her parental home near Farrukhnagar. All these allegations of
cruelty have been discarded by the Family Court observing that till
about April 2008, there was no major cause for marital discord
between the parties and they were sailing through martial life without
much turbulence except for normal wear and tear of their married
relationship.
11. With regard to the alleged incident that took place in the night
of 06.08.2008 at Farukhnagar, the Family Court observed that the
appellant/RW1 testified that the respondent did not come to
Farukhnagar on the said night and had no role to play in incident of 6th
August, 2008. The appellant although in the complaint (Mark C)
made to the DCP Gurgaon, did not attribute any role to the respondent,
yet he was later on implicated in the complaint made to the police
which culminated into an FIR No.130/2008 under Sections
498A/406/323/506 IPC. It is also observed by the Family Court that
the appellant also testified that while residing at Bijwasan, the
respondent would call her parents and abuse them, which version is
not supported by the appellant's father, who was examined as RW2.
12. The Family Court also noted that the FIR was registered not
only against the respondent-husband but also against his mother,
sister, brother-in-law, brother and one uncle Mohar Singh, who faced
the trial and were eventually acquitted vide judgment dated
16.08.2016 passed by the Court of Ms. Neelam, Sub-Divisional
Judicial Magistrate, Pataudi, Haryana. Further, the respondent
remained in judicial custody for a while and other accused persons had
to obtain anticipatory bail. In this backdrop the Family Court observed
that the appellant by leveling false allegations of her ill-treatment in
connection with dowry demand and then resorting to criminal
proceedings against the respondent and his family members, that
resulted in their acquittal, has caused unbearable pain, misery and
discomfort to the respondent. The Family Court further observed that
the sustained course of unjustifiable conduct and behavior on part of
the appellant-wife inflicted great degree of physical and mental cruelty
upon the respondent-husband.
13. The Family Court thus, held that the treatment the appellant
meted out to the respondent while residing separately at Bijwasan and
the events that unfolded on 06.08.2008 pose danger or apprehension in
the mind of the respondent that it is not safe to reside and co-habit
with the appellant.
14. Resultantly, the divorce petition of the respondent was allowed
by the Family Court and the marriage between the parties was
dissolved in terms of section 13(1)(ia) of the Act.
15. Mr. Siddharth Mittal, the learned counsel for the appellant
submits that the only ground on which the learned Family Court has
allowed the divorce petition of the respondent is that the respondent
has been able to prove that the appellant initiated criminal proceedings
by leveling false allegations as such proceedings resulted into the
acquittal of the respondent, which amounts to cruelty.
16. He submits that the complaint was filed by the appellant prior to
the institution of the divorce petition but no ground of filing a false
complaint has been pleaded by the respondent in the petition.
Therefore, the finding of cruelty by the learned Family Court on the
ground that the allegations made in the criminal complaint filed by the
appellant were false, is beyond the pleadings. He submits that even
the order of acquittal came to be passed after the evidence had been
closed by the learned Family Court, therefore, same ought not have
been considered by the Family Court. To buttress his contention, the
learned counsel placed reliance on the decision of Supreme Court in
Mangayakarasi vs. M. Yuvaraj, (2020) 3 SCC 786.
17. Further, placing reliance on the decisions of this Court in Kavita
vs. Rakesh Raman, MAT.APP. 52/2009 and in "Sheo Nath Singh vs.
Sujata" II (2007) DMC 601, the learned counsel contends that
discharge/acquittal in a criminal case by itself does not constitute
cruelty.
18. He submits that mere filing of complaint or acquittal of accused
is not cruelty, if there are justifiable reasons to file the complaint. In
support of his contention, reliance is placed on the decision of this
Court in Raj Talreja vs. Kavita Talreja, (2017) 14 SCC 194.
19. He further submits that judgment of acquittal is under challenge
before the learned ASJ, Gurgaon and since the appeal is pending for
consideration before the first Appellate Court, the judgment of
acquittal should not be read in evidence in the absence of any other
grounds being made out.
20. He contends that the fact that the respondent had to suffer
incarceration will also not furnish a ground for dissolution of marriage
when the ground of false implication was not pleaded.
21. Per contra, the learned counsel for the respondent-husband
invites the attention of the Court to the evidence filed by way of an
affidavit by the respondent/PW-1, to submit that in the said affidavit
the respondent has specifically alleged that a false case of dowry
demand was filed against the respondent and his family members and
in the said false case the respondent had to remain in judicial custody
for some period. He submits that this part of the testimony of the
respondent/PW-1 has gone unrebutted.
22. He submits it has also come on record through cross-
examination of PW-1, in response to the question put by the
appellant's counsel, that the respondent remained in police/judicial
custody for three days, which fact also remained uncontroverted.
23. He submits that it is not in dispute that the respondent and his
other family members were acquitted vide judgment dated 16.08.2016
passed by the Court of Ms. Neelam, Sub-Divisional Judicial
Magistrate, Pataudi, Haryana. He further submits that it has also been
recorded by the learned Family Court that during the course of
arguments it was admitted by the appellant's counsel that the
respondent remained in judicial custody for a while and other accused
persons were admitted to anticipatory bail at the initial stage of the
case.
24. He submits that lodging of false complaint and incarceration of
the respondent in a case which has resulted in the acquittal of the
respondent, amounts to mental cruelty. He places reliance on the
decision of this Court in "MS vs. SD" in MAC.APP.(F.C).
213/2017,(D.O.D. 23.04.2019) and Vinod Prajapati v. Dev Kumari @
Devki Prajapati of Madhya Pradesh High Court, First Appeal No.
306/2009 [DB]
25. We have heard the learned counsel for the appellant, as well as,
the learned counsel for the respondent and have perused the record.
26. The expression "cruelty" has not been defined in the Hindu
Marriage Act but the Hon'ble Supreme Court had an occasion to
examine the concept of "mental cruelty" in "V. Bhagat v. D. Bhagat",
[(1994) 1 SCC 337]. It was observed that "mental cruelty" is that
conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with the
other. The nature of mental cruelty should be such that the wronged
party cannot reasonably be expected to live with the other party.
27. It is not in dispute that the respondent and his mother, sister,
brother-in-law, brother and one uncle Mohar Singh were implicated in
a criminal case registered at the instance of appellant vide FIR
No.130/2008 under Sections 498A/406/323/506 IPC. All the above
family members faced trial for eight long years and eventually they
were acquitted vide judgment dated 16.08.2016 passed by the Court of
Ms. Neelam, Sub-Divisional Judicial Magistrate, Pataudi, Haryana on
detailed appreciation of evidence. A perusal of the judgment of
acquittal shows that the Court considered and appreciated the evidence
on record in respect of each alleged offence and concluded that the
prosecution has failed to prove the guilt of the accused beyond shadow
of reasonable doubt in respect of the offences under Sections
323/498A/406/506 IPC.
28. It has also come in the evidence that the respondent remained in
police/judicial custody for period of three days. Even other family
members of the respondent had to obtain anticipatory bail.
Undisputedly, the incarceration of the respondent happened during the
pendency of the divorce petition.
29. It is no more res integra that if a false criminal complaint is
preferred by either spouse, it would invariably and indubitably
constitute matrimonial cruelty, such as would entitle the other spouse
to claim a divorce.1 The Hon'ble Supreme Court in K. Srinivas Rao
V. D.A. Deepa, (2013) 5 SCC 226 and Dr. (Mrs.) Malathi Ravi, M.D.
V. B.V. Ravi M.D. (2014) 7 SCC 640 also laid down the principle that
lodging of false complaint amounts to cruelty.
30. The respondent was working as a Lecturer in the Delhi
University and his incarceration could have affected his service and
career. In any event, the incarceration adversely affects the reputation
of any individual in the eyes of his employer, colleagues, family,
friends and the society at large. The acquittal of the respondent and
his family members not only reinforced the presumption of their
K. Srinivas vs. K. Sunita : (2014) 16 SCC 34.
innocence but established the fact that the criminal complaint on
account of which the respondent and his family members had to suffer
the agony of trial for eight long years, was false.
31. We have no doubt in our mind that institution of false criminal
case by the appellant against the respondent and his family, in which
they were eventually acquitted, amounts to cruelty and in such a
situation, the respondent, who suffered acute pain, agony and suffering
on account of his incarceration and facing protracted trial for eight
long years, cannot reasonably be expected to live with the appellant.
32. In so far as the submission that the ground of filing false
criminal complaint has not been pleaded in the divorce petition, we
notice that the appellant-wife in her written statement has specifically
made a mention of FIR No.130/2008 under Sections
498A/406/323/506 IPC that was registered against the respondent and
his family members. The respondent in his evidence by way of an
affidavit, categorically deposed that he and his other family members
have been implicated in a false case of dowry demand which has been
registered vide FIR No.130/2008 and that he had to remain in judicial
custody for some time. This part of the respondent's testimony has
remained uncontroverted. Further, no objection was raised by the
appellant's counsel that the respondent's (PW1's) testimony on this
aspect of cruelty was beyond the pleadings. Furthermore, in response
to the question put by the appellant's counsel, the respondent/PW1 in
his cross-examination stated that he remained in police/judicial
custody for three days, which fact also remained uncontroverted.
33. It is not in dispute that the events of respondent's incarceration
for three days and the acquittal of the respondent and his family
members, occurred after the filing of divorce petition, therefore, the
same being un-disputed subsequent events could have been considered
and looked into by the Family Court. No objection seems to have
been raised by the appellant when arguments were addressed on the
aspect of acquittal and effect thereof.
34. From the above narration of facts, it appears that both the
parties were fully conscious of the allegations of false criminal case
and incarceration of respondent as the facets of cruelty, being in issue
in the present case, therefore, the appellant at this stage cannot take an
objection that the said grounds were not pleaded in the divorce
petition or that she has been taken by a surprise. It is trite law that
taking note of subsequent events or changed circumstances help in
shortening the litigation and enable complete justice being done to the
parties.
35. The Hon'ble Supreme Court in case "K. Srinivas vs. K
.Sunita"(supra) under somewhat similar facts and circumstances
rejected the contention to not consider the order of acquittal arising
out of a criminal complaint in respect of which no pleadings were
made in the divorce petition, by observing as under:
"...6. Another argument which has been articulated on behalf of
the learned counsel for the respondent is that the filing of the
criminal complaint has not been pleaded in the petition itself. As
we see it, the criminal complaint was filed by the wife after filing
of the husband's divorce petition, and being subsequent events
could have been looked into by the court. In any event, both the
parties were fully aware of this facet of cruelty which was
allegedly suffered by the husband. When evidence was led, as
also when arguments were addressed, objection had not been
raised on behalf of the respondent wife that this aspect of cruelty
was beyond the pleadings. We are, therefore, not impressed by
this argument raised on her behalf."....
36. Reference in this regard may also be had to the decision in
Malathi Ravi, M.D (supra), wherein it was held by the Hon'ble
Supreme Court that the subsequent events which are established on the
basis of non-disputed material brought on record can be taken into
consideration.
37. The reliance placed by the learned counsel for the appellant and
in Mangayakarasi (supra) is misplaced, inasmuch as, the same is
distinguishable on facts. In the said case, the learned Trial Court
dismissed the divorce petition filed by the husband which judgment
was affirmed by the first Appellate Court. The divorce petition was
predicated on the allegation about the wife using filthy language in the
presence of the relatives and friends and also using such language in
the presence of the students of the husband. The learned Trial Court
had referred to the evidence and the first Appellate Court, as the last
court for re-appreciation of the evidence, had also undertaken the said
exercise and arrived at a concurrent decision on the matter. The High
Court in the second appeal had a limited scope for interference based
on the substantial question of law. However, the High Court framed a
substantial question of law premised on the judgment of acquittal,
which the Supreme Court opined to be the question framed on facts
providing scope for re-appreciation of evidence and thus, held that it
was not a substantial question of law. It was in that backdrop that the
Hon'ble Supreme Court observed that "the tenor of the substantial
questions of law as framed in the instant case and decision taken on
that basis, if approved, it would lead to a situation that in every case if
a criminal case is filed by one of the parties to the marriage and the
acquittal therein would have to be automatically treated as a ground
for granting divorce which will be against the statutory provision."
38. In regard to the contention of the appellant that an appeal has
been preferred against the order of acquittal, therefore, the order of
acquittal has not attained finality, suffice it to say that in case of
acquittal, there is double presumption in favour of the accused. Firstly,
the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent Court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced, re-
affirmed and strengthened by the learned Trial Court. 2 In any event,
the order of acquittal has not been set aside nor the operation thereof
has been stayed. Therefore, the contention of the learned counsel for
the appellant deserves to be rejected.
39. Besides that, as noted above, the falsity in the allegations made
in the complaint which became basis of the FIR has independently
been established before the trial court from the testimony of the
Chandrappa and Ors. Vs. State of Karnataka :(2007) 4 SCC 415, para 42(4)
appellant/RW-1, when she admitted that on 06.08.2008 the respondent
had not come to the matrimonial house at Farukhnagar, which goes to
show that the respondent had no role to play in the incident of 6th
August, 2008, contrary to the allegation in the complaint/FIR that on
the said date the respondent alongwith his other family members had
given beatings to the appellant at her matrimonial home at
Farukhnagar. Further, in the present case the cruelty is compounded
by the filing of a false complaint which is coupled with incarceration
of the respondent.
40. In view of the discussion in the preceding paragraphs, no
ground for interference is made out and the present appeal deserves to
be, and is, dismissed, leaving the parties to bear their own costs.
VIKAS MAHAJAN, J
SANJEEV SACHDEVA, J
NOVEMBER 29, 2023/dss
