Vivek Bhatia vs Smt. Anju Bhatia on 21 September, 2017

Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

First Appeal No.82 of 2015
Vivek Bhatia __Appellant
Versus
Smt. Anju Bhatia Respondent

(By the judgment impugned dated 24.7.2015 Section 13 of
the Hindu Marriage Act, 1955 of the husband seeking
dissolution of marriage has been decreed)

With

First Appeal No.80 of 2015
Vivek Bhatia __Appellant
Versus
Smt. Anju Bhatia __Respondent

(By the judgment impugned dated 24.7.2015 Section 26 of
the Hindu Marriage Act, 1955 seeking grant of custody of son
was dismissed)

With

First Appeal No.83 of 2015
Vivek Bhatia __Appellant
Versus
Smt. Anju Bhatia Respondent

(By the judgment impugned dated 24.7.2015 Section 9 of the
Hindu Marriage Act, 1955 filed by wife as a counter claim
seeking restitution of conjugal rights was dismissed)

Present:- Mr. Siddhartha Singh counsel for the appellant
Mr. Neeraj Garg, counsel for the respondent.
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Coram:- Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Reserved on 10.08.2017
Delivered on : 21.09.2017

Per – Hon’ble Sharad Kumar Sharma, J.

For the purposes of brevity, the Appeal No.82/2015
is taken up as the leading case.

2. Brief facts of the case are that the marriage
between the appellant/husband and respondent/wife was
solemnized on 6.5.2011 at Dehradun (hereinafter since there
being two appeals which has been preferred by the wife and
one by husband, they are being referred as husband and
wife).

3. The marriage thus held on 06.05.2011 was
registered with the Registrar of Marriage at Dehradun. At the
time of marriage the husband was working as an Engineer in
Jet Airways, Mumbai where after the marriage the wife joined
the husband and they lived together for 2 years and
discharged their matrimonial obligations as husband and wife.

4. After the marriage and as a consequence of the
same a son named Riyarth was born on 12.2.2012, who at
the time of filing of the suit was of 14 months of age and was
living with the respondent/wife. The respondent/wife used to
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be too atrocious and often she was in the habit of
misbehaving with the appellant/husband. According to the
appellant/husband his case was that the respondent/wife
used abusive language and the environment in the home was
so acrimonious that it became gradually difficult to endure the
company of the wife, the reasons for which would follow
hereinafter.

5. The husband and wife went to Vaishno Devi along
with wife and after their return, they had gone to celebrate the
25th Anniversary of his uncle to Jaipur. While returning, the
husband and wife had to travel back to Dehradun by bus, this
also created a trouble for him when the wife created a scene
at the bus station itself alleging thereof that she is not in the
habit of travelling by bus and she had humiliated the husband
in public and thereafter they had gone to Mumbai.

6. Respondent/wife, her sister Garima and her cousin
brother all had visited the husband’s home at Mumbai and all
of them had gone together to Lonawala. For the reasons
known, the wife suddenly started reacting rudely at Lonawala
and started abusing the husband for no justified reason. The
husband’s case was that the behavior of the wife was
unpredictable as she used to create scenes, which was too
humiliating for him and it was not one or two incidents which
has happened, this continued to be so on number of other
occasions.

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7. Not even this, she used to carry the family issues
on the road and whenever she lost her tamper she used to go
on the road create scene and she even used abusive
language for the parents by shouting slogans on the road and
thereby humiliating the family members before the public at
large. The husband’s case was further that thereafter he had
to take number of hours to pacify the wife and to make her
understand to come back to home. It was a case of the
husband that she had at times alleged “vc rqEgkjk dke gks x;k gS
rks vc rqe D;ksas esjk /;ku j[kksxs eSa jaMh gwa eqs NksM+ nksÞA)

8. The husband’s case was further that the attitude of
the wife was so acrimonious and humiliating that she used to
send messages to the husband by saying that whenever he
will go to the office she will sleep with the neighbors and she
used to pressurize the husband to give her divorce as she
wanted to live separately.

9. Not only this, often the wife used to be so
unpredictable that she used to lock herself in her room or in
the bathroom and used to threaten that she will consume
phenyl or she will cut her veins and commit suicide and
thereby entrap the husband and entire family members in a
criminal cases.

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10. It is the case of the husband that when in last week
of July, 2011, when the husband’s parents visited Mumbai the
respondent/wife quarreled with them and misbehaved and
when the parents of the husband tried to make her
understand and to pacify the disputes and requested her to
behave properly as they are equivalent to her mother and
father, she used to further aggravate the issue and used to
misbehave with them and when the husband tried to ask her
to behave properly she became more aggressive and even so
much so that she alleged that tc rqEgkjk csVk esjs lkFk lksrk ugh gS rks
csVk dSls iSnk gksxk”. All these scenarios in the home were quite
shocking to the parents of the husband and they were often
afraid that she may at any stage entrap them in a criminal
case and this was spoiling the environment of the family
which was too shocking for them.

11. They were further much frightened when they
found that the wife used to throw the household articles for
no good reasons but, later on, when she realizes her
mistakes, she used to apologize for the same and with an
assurance that she will not commit it in future.

12. It was in first week of Aug, 2011 when the wife
has gone to Dehradun to visit her parents there she was
diagnosed that she was carrying 3 months old pregnancy,
she stayed at Dehradun till Sept, 2011 and during this period
of her stay at Dehradun, whenever the parents of the
husband asked her to visit them or to stay with them at
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Dehradun she refused and she had not even came to meet
the parents-in-law, had not given even a curtsy call to them.

13. Later on, when the parents of the wife tried to
make her understand she used to visit the in-laws at
Dehradun only whenever she had to go out for her medical
checkup, whenever she used to visit the parents of the
husband after the father-in-law of the wife asked her as to
why she is residing with her parents as she can reside with
them, her matrimonial house, she alleged that she cannot
spent even a single minute with them because staying with
them, she alleged that she gets suffocated and does not
want to live with the parents-in-law.

14. After some time, the husband visited the
Dehradun and took the wife to Mumbai.

15. The husband’s case was that when wife was under
her pregnancy, he has taken all care of his wife by getting
her regular check-ups ensuring all safety and precaution
during the period of her pregnancy. But according to the
husband the attitude of the wife remained as ever
unpredictable and too humiliating and it went to so
unbearable limits that when she was carrying 5 months’
pregnancy, she inflicted punches on her stomach shouting
that she will kill herself as well as the child in the womb and
whenever the husband wanted to pacify her and requested
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her that it will be too fatal for the child she became more
furious and it became practically very difficult to make her
understand as the consequences of her behavior towards the
child.

16. The situation has gone to such an extent and
uncontrolled that due to the attitude of the wife not only
towards the husband but allow toward the parents of the
husband while she alleges that the parents in law have
ruined her matrimonial home, to express his agony the
husband has gave a call to the brother of the wife and her
father and informed them about the unpredictable attitude
of the wife and in response he was told by them that the
wife is now his responsibility and they are not concerned
with her and they disconnected the telephone.

17. Under these unbearable circumstances, son was
born on 12.2.2012 at Mumbai.

18. It is quite natural that the grandparents of the son
visited Mumbai to see their grandson, but on their visit to
the hospital she yet again misbehaved with them and she
contended that “why have you come over here; go back to
Dehradun and take care of your business; there is no need
for you to come to Mumbai”. This attitude of the wife was
too shocking for the parents of the husband. Not only this,
when she was in the hospital she used to start shouting for
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no good reasons and this often used to create disturbance
for the fellow patients and this was objected by the
patients.

19. All the expenditures of the operation treatment of
the wife in the hospital and delivery of the son was borne by
the father of the husband, but the thought process of the
wife was so low that she even had gone to such an extent
asking the husband to handover all the envelops which were
given by the relatives as gifts to child, on the birth of the
son.

20. Under the garb of the son being born and she
being hospitalized and physically weak she used to force
upon the parents of the husband to take care of her by
providing her day to day requirements while she was under
treatment. It was also case of the husband that she used to
complaint to the maidservants about the parents of the
husband alleging thereof that they are not taking care of her
and also that they do not know how to cook food and to take
care of their daughter in law, in post pregnancy period.

21. The parents of the husband, whenever they
wanted to meet the grandson, she never used to permit
them to meet the grand child, and she was psychology
suffering to such an extent that she used to say that the
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parents of the husband who visited to meet their grandson,
there is a possibility that they may infect her son.

22. In May, 2012 according to the husband, his mother
was detected a kidney cancer and she was taken to Mumbai.
Doctor advised that the mother of the appellant has to
undergo an operation as her right kidney was to be
removed. During her course of treatment the
respondent/wife neither showed any sympathy to her
mother-in-law nor had taken any care of her, which a wife
should have done voluntarily towards her parents in law.

23. It is the case of the husband that before two days
when the operation of his mother was scheduled,
respondent/wife misbehaved with the mother of the
appellant. When the husband found that there is no respite
in the attitude of the wife, and she was not providing any
assistance to him during this period of crises. When the
mother of the husband was ailing he called upon his friend
Yogesh Garg and they took the mother to Bhakti Vedanta
Hospital where she was operated over there and during this
period the wife never visited her mother in law and what to
say about looking after her.

24. It was also the case of the husband that whenever
she was requested to stay in the hospital and to take care of
his mother, during the course of treatment, the wife alleged
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that she is your mother, it’s your responsibility and since it
is his mother she cannot leave her child and stay in the
hospital. From this attitude she often used to make out ways
for harassing the husband and often she used to say that she
enjoys seeing the husband in trouble.

25. Immediately after the discharge of the mother,
after operation, the father of the husband was also operated
upon for eyes and while he was taking care of his father the
wife never showed any concern towards his mother who was
at home with her after being discharged from the hospital.

26. According to the husband the attitude of the wife
was so atrocious that she often used to quarrel with the
husband saying that take away your mother from her home
as either she would remain here or his mother as by keeping
her in Mumbai after her treatment she contended that the
husband was trying to befool her. As per the husband the
plaint allegation was that in one of a function she had
slapped the mother in law and abused her saying “lkyh dqRrh
ej tkAß

27. When despite of all efforts made by husband for
making her understand being consistently extended by the
husband to his wife, not to behave in such a manner
remained un-responded and unheeded, he was left with no
option except to call one of his friends Deepankar, who
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took the parents of the husband to his own house and kept
them there for five days.

28. The husband’s case was that he has informed
about the said incident to the parents of the wife, who on
telephone asked her to pray for forgiveness from her parents
in law and also asked her to call back the parents who had
gone to Deepankar’s home. Even the husband’s case was
that he tried to call the father in law to come to Mumbai
and to make her understand but the father in law declined
to come to Mumbai by saying that it was not possible for him
to leave the business and come to Mumbai and when the
husband asked his father in law on telephone that whether
he has any concern with the matrimonial life of his daughter
he replied that it is your matrimonial life; you take care of
it and he disconnected.

29. The husband alleged that when respondent/wife
slightly became docile he called back his parents to his
home. She also accused husband that the relatives of the
husband often used to instigate her against her husband,
and she contended that this was one of the reason that she
has believed their version and used to misbehave with the
parents in law.

30. The husband’s case was also that she used to say
that Riyarth was not his son, he was her son and she would
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very soon give divorce to him. The husband contended that
the attitude of the wife seems that she is suffering from
some mental disorder and when the parents of the husband
left from Mumbai to Dehradun she has beaten the small
child and thrown him on the bed and used abusive language.

31. According to husband, when he tried to restrict
her from using abusive language, she became so aggravated
and she hit on his gonads, she was of so imbalanced mind
that she used to beat herself by sleepers and used to exert
threats that she will cut her veins and would commit
suicide, but things did not yield any result. The husband’s
case was also that when husband used to make her
understand that this attitude is not very conducive for a
domestic life and more particularly when they have a child
to whom they bear a responsibility to build his career and
up-bring him in a healthy environment she used to abuse
further and alleged as under:-

“viuh eka dh ftl txg ls vk;s gks ogh vanj ?kql tkvksA vkSj ,slk dgus ds
nkSjku foi{kh us viuh maxyh vius xqIrkax dh vksj fn[kkbZ Fkh”

32. The husband has taken the wife to Dehradun so
that she may live with her parents for some time and that
would somehow revive her attitude towards him and his child.
While leaving from Dehradun to Mumbai the husband has
given Rs.10,000/- to the wife in front of her father so that she
may be able to meet her expenses during her stay at
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Dehradun and to meet her personal requirements. On this
even too the wife started shouting as to why he has handed
over the money in front of her father.

33. After about six months the mother of the husband
was diagnosed that she was having enlarged heart and for
that she was to be scanned ever six months. During this
phase the husband was quite troubled and often to pay
attention to his mother and used thinking about that how to
take care of his ailing parents single handedly and discharge
his honorous duty towards her parents as son.
Simultaneously, during this period, the father of the husband
was also suffering from some diseases in his brain and for its
cloning he was operated five times, but even during this
period too the wife continued to inflict all agonies by her
attitude and never supported the husband or his parents
during this period of medical crises.

34. It was the case of the husband that when on
29.1.2013 he had gone from Dehradun to Kanpur, the wife
had abused the parents in front of all the guests who were
attending the marriage at Kanpur and in anger she left the
marriage place and had got to G.T. Road from where it
became very difficult for the husband to get her back which
he could succeed only after 2 to 3 hours of arduous effort.

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35. According to the husband, there was another
incident when on 2.2.2013 the husband along with the family
members have gone to Jaipur to attend the marriage of one
of the relatives. At the station itself the wife started
misbehaving with the parents of the husband and threatened
them that she would jump in front of the train along with the
child and commit suicide. The husband apprehended that
since she being a lady of a distorted attitude, anything was
expected from her, hence, somehow, the husband and his
father took the child and entered into the train. The awkward
situation at the station was averted. During the course of
journey to Jaipur, the wife has sat near the toilet along with
the child despite being aware of the fact that the child was
suffering from high fever due to which the husband had not
slept for the entire night in front of toilet of the coach because
he was apprehending anything untoward that the wife would
be jumping out from the train. The husband informed about
the entire incident which has chanced in the train journey to
the parents of the wife, who on telephone said to leave the
wife because the attitude of the wife is so incorrigible
inevitable observing that Jaipur is a big city, she can go
wherever she wants and they disconnected the telephone. At
Jaipur an incident chanced where the wife had thrown her
sandal, on her father in law and got hold of his collar and
pushed him from the floor. All these attitudes, according to
the husband, shows that she was not a lady with whom it is
practically possible to spent life because her mental disorder
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was such that nothing would be able to pacify her attitude and
to make her understand and threat always persisted that
anything could happen at any time.

36. One of the relatives who was attending the
marriage to the husband and asked him that there is a very
good psychotherapist at Jaipur and he can taken his wife to
the psychotherapist for her treatment. On 6.2.2013 the
husband has taken wife to a hospital where she was
examined by the psychotherapist. The Doctor Jayshree, who
had attended her, gave her report on 8.2.2013 and she
informed that the wife is suffering from a disease of being too
emotional personality and she further advised that she should
be taken to Mumbai for regular treatment. On this, the
husband has taken her to Mumbai and got her treatment at
Bhakti Vedanta Hospital.

37. The Doctors attending upon her at Bhakti Vedanta
Hospital informed on 14.2.2013 that she was suffering from
border line personal syndrome, which is a disease, by which
a person suffers from a sudden spurt of aggravation, she was
placed under treatment, but there was no change in her
attitude because the problem which she was suffering was
aggravated further after sometime.The husband has taken
the wife for treatment to another Doctor called as Dr. Dhara,
who advised that the nature of problem which the wife was
suffering is such that the continuance of her with the child
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would be too dangerous and, thus, advised that the child
should be kept away from her. On facing with the situation,
the husband called his friends Subodh and Santosh for his
help.

38. The husband’s case was that he had asked
Subodh to take care of the child by staying at home and the
husband along with another friend Santosh has gone out to
search the wife who had left home and after some time he
found that the wife was roaming around in the city and when
she was asked her come back to home she physically
assaulted the husband.

39. The husband’s case was also that to inflict injuries
on herself she even used to take over doses of the medicine
prescribed to her by the doctor and she also used to lock
herself in the room. After consuming an over dose medicine
she placed a suicide note in front of her room in which it was
written “eSa vatw vius fjLd ij lwlkbZM dj jgh gwaA fnukad 22-2-2013”.

40. On 22.2.2013, according to the husband, she was
taken to hospital called as Mayana Hospital, which is a
hospital basically for the patient suffering from mental
disorders, there Dr. Sujai who treated upon her, advised the
husband to admit her in the hospital and on the next day
another expert who attended her i.e. Dr. Devendra Savey, he
gave his report that she is a patient suffering from border line
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syndrome, which is a nature of disease which a patient
suffers from aggravated aptitude of mind. She was prescribed
10 days medicine and during this period when, she had to
consume the medicine as she was further advised not to feed
the child. The husband contended that he was always under
fear that the wife can commit suicide at any time because on
22.3.2013, she has locked herself in the room along with the
child and she has beaten the child for no valid reasons, she
also threatened that she will consume over dose medicine as
prescribed and then she will feed the child. Thus the husband
felt that it is not safe for the child to stay with the wife and
thus there was no other remedy left except to take custody of
the child and, thus, he took the child and via air brought him
into Dehradun.

41. The husband contended that after the said incident
they came to Dehradun and met the parents of the wife and
informed them about the incident which has taken place in
Mumbai, but the parents of the wife had not cooperated him
in any manner to tackle their daughter or the help the
husband to overcome the situation.

42. At Mumbai too the husband has taken the wife to
Doctor Pratibha Sharma a Psychologist for a check-up in
Doon Hospital, during the course of treatment, for help the
husband contended that he call upon the parents of the wife,
but they had avoided to extended only help which adversely
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affected the family. According to the advice extended by Dr.
Pratibha Sharma the wife was kept at the parents’ home of
the husband and husband and his parents were taking care of
her in all aspects. The Doctor further advised to remove all
dangerous things which could be harmful, for example; lock,
knives and other such household articles which can inflict
injuries.

43. Dr. Pratibha Sharma advised the
appellant/husband and referred the respondent/wife to Dr.
J.S. Bisht who was an expert psychotherapist of Doon
Hospital who advised that the wife is suffering from a mental
problem and advised the same prescription as she was taking
in Mumbai.

44. The husband’s case was that all these aspects
pertaining to the ailment of wife and her attitude was
concealed from being brought to the knowledge of the
husband and to his parents at the time when the marriage
was being settled and, thus, the family members of the wife
had mislead the husband and his family members and got the
marriage settled by concealing the facts because as per the
reports which had given by the Doctors attending upon the
wife, her ailment which she was suffering from was right from
her childhood and had continued for considerable long time.

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45. The husband has filed the petition apprehending
that the husband and his family members may be entrapped
by the wife in false civil and criminal cases, because if they
had been made aware of the ailment of the wife prior to the
marriage they wouldn’t have solemnized the marriage and
thus he contended that it was a very planned and in a
conspired manner in which the marriage was settled and thus
this in itself will tantamount to be a cruelty to the husband and
hence he was entitled for a decree of divorce as the wife was
not competent in any manner to take care of the child and
husband looking to the ailment and behavior, and thus their
future was not safe in case if the marriage is forced to
continue because she may at any time commit suicide.
Husband also expressed his helplessness when all his efforts
made to eradicate the ailment failed.

46. The wife appeared before the court below and filed
her written statement along with the counterclaim paper
no.74-Ka. In the counterclaim she sought a relief for
restitution of conjugal rights. During the pendency of the
proceedings of the suit, the husband has filed an application
under Section 26 of the Hindu Marriage Act, 1955 praying for
providing the custody of the child Riyarth because looking to
the ailment of the wife it was not safe for the child to continue
to live with her.

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47. In response thereof when the wife filed the written
statement, she came up with a case that the suit of the
husband was not maintainable under the Hindu Marriage Act
and deserves to be dismissed, she further submitted that the
husband cannot take the advantage of his own mistakes and
thus the petition filed by the husband for dissolution of
marriage deserves to be dissolved by invoking Section 23 of
the Hindu Marriage Act, since being based upon false
allegations and false grounds. She contended that looking to
the backdrop under which the suit has been filed it was rather
the husband who is to be accused of inflicting both physical
and mental cruelty on the wife, she submitted that the filing of
the suit is not based upon the free will of the husband but
rather on the advice of his parents, who have a dominating
hand in the decision making process of the husband.

48. She contended that the husband has not come up
with clean hands and rather has deserted the wife for no
reason, but despite of all this cruelty she submitted that still
she wants to retain the family relationship after forgetting
whatever has happened in the past as she loves the
husband, and does not want to live separately.

49. She submitted that the parents of the wife wanted
to have a normal marriage but looking to the pressure exerted
by the parents of the husband, the parents of the wife had
spent handsome amount of about Rs.18 Lakhs in
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solemnization of marriage which was beyond the financial
capacity of the parents of the wife and despite the fact that
the parents of the wife had informed the husband’s family
about the probable gifts and valuable which are to be
exchanged in the marriage she contended that the family
members of the husband were not satisfied which is the
reason for the entire dispute.

50. While admitting part of the pleadings of the plaint
she contended that the pleadings raised by the husband in
Para 4 of the plaint is absolutely distorted as she contended
that she is an educated lady and it can never be presumed
that she would be using filthy language towards her in-laws
and contended that the pleadings thereof are based upon the
self created fiction of the husband. She denied the allegations
leveled against her that often she used to go out from the
house and creates scenes and in counter plea thereof she
submitted that her stay in Dehradun for last 27 years she had
never ventured out for even a distance of 5 to 10 km. Hence
there is no possibility for her that in city like Mumbai, she
would be roaming around the places which are unknown to
her. She alleged that whenever the husband used to come
back home after consuming liquor he used to misbehave with
her and he used to ask the wife to go out of the home and not
to return back and she contended that at times she used to sit
on the staircases of the flat for hours together, she alleged
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that the husband has got a very bad habit of excessive
drinking and smoking.

51. While denying Para 5-A of the plaint she stated that
the story developed by the husband that they came to
Dehradun by plane was wrong, she submitted that on
01.08.2011 she came to Dehradun by train along with her
parents and straightway went to the matrimonial home. She
alleged that when she was staying at Dehradun, she was
diagnosed to be pregnant and she contends that she
informed the husband, but on hearing the news she
contended that the husband was not happy and he asked her
to get the child aborted, as according the wife she contended,
that the husband pleaded that his own life is not settled and at
this stage he does not want to become father. She contends
that after hearing the news of pregnancy the husband was not
happy, she pleaded that she requested the husband that she
wants carry with the pregnancy, as she wanted to bear a child
and she contended that the husband told her that even if she
gives birth to the child, he is not in position to take any
responsibility of the child as there is dearth of finances.

52. The wife pleads that she tried to persuade the
husband to permit her to give birth to the child as she thought
that his or her birth to the family would bring lot of happiness
on which the husband disagreed. She contended in her
written statement that the husband was in the habit of being
23

extravagant and spent his earning on himself only without
taking care of his children and his family and that is why he
was trying to avoid getting the child and she further submitted
that in day-to-day functioning of the household work the
husband used to accuse her in the manner in which she used
to perform her matrimonial activities.

53. She denied all the allegations which the husband
has leveled against her about the misbehaviour of her with
the parents in law. Her case was also that during this
pregnancy and when the child was being born the husband’s
attitude was to always ensure that the child does not survive
as he was more interested to save money rather than to
derive the happiness of the birth of a child in the family. She
further contended that she wanted the delivery to take place
at Mumbai so that they may be avail the benefit of insurance
policies at Mumbai but the wife’s case was that the husband
avoided to have delivery at Mumbai. She further submitted
that because a cesarean child was borne due to which some
expenses were incurred in the birth of the child which was not
welcomed by the husband and he used to accuse her, as to
why she has not given birth to a weak child so that she could
have had a normal birth instead of cesarean and the
expenditure would have been much reduced. She submitted
that as a matter of fact the husband and his parents are the
person of greedy attitude who gave more importance to
money rather than the happiness of the birth of the child.

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54. She pleaded that after the delivery of the child for a
considerable long time the husband has never visited
Dehradun, and whenever he had to visit, he had never shown
his willingness to organize any function and used to visit the
in-laws as if he was attending a function. She contends that it
is an admitted fact that the mother of the husband was
suffering from cancer in kidney and she was operated upon
but she denied the fact as pleaded by the husband that she
has not taken care of her mother in law when she was ailing.

55. There had been a number of small incidents which
were pleaded by the wife pertaining to the attitude of the
parents while they were served with the food pertaining to the
incident where the parents of the husband has thrown the
food prepared by her and asked her not to cook food for them
anymore. When they have accused her of not performing the
household works, she contended that all these small incidents
used to increase her agony and it became difficult for her to
bear all these tortures and she used to inform about the
incidents to her parents.

56. She contended that the parents of the wife had
organized a very big function called as “Chola Samaroh” on
the birth of child, but the husband and his family members
had never shown their satisfaction to the function, never
participated in it as they should have. In her reply she
25

admitted the fact that when the husband has dropped her to
Dehradun he handed over sum of Rs.8000/- and not
Rs.10,000/- as pleaded in his plaint, she contended that while
she was staying at her place at Dehradun the husband had
puffed out the cigarette smoke on the face of her father, but
since he was the son in law, she contended that her father
avoided to react to it.

57. She admitted the contents of Para 8 of the plaint so
far it related to the disease of the mother and that her heart
has inflated, she contended that the husband had lust of
money and despite the fact that he was earning about
Rs.1,25,000 from his services, but still he wanted the wife
should work, she contended that after the birth of child, when
all the desire of the husband stood vanquished he wants to
desert her so that he may live freely and may not feel the
burden of taking care of her and the child, her allegation was
also that the husband was so ignorant that even whenever
son Riyarth used to fall ill he never used to take care of the
child and she had to travel all through in an auto-rickshaw to
take him to the hospital for treatment.

58. In reply to the pleadings of the plaint pertaining to
the treatments which had been performed on the wife, has
been denied and she alleged that whenever on the date of
her appointment with her doctor, she came to the hospital she
was made to be attended by a Doctor who was the friend of
26

the uncle of the husband. In support of the clarification that
she was not suffering from any mental ailment she pleaded
that Dr. Pratibha Sharma, who attended upon her for 3
months had opined that the wife is quite normal and she is
not suffering from any mental problem. It was thereafter, that
the husband has deserted the wife and left for Mumbai and
even after a period of 20 months he had never come to the
home to know about the whereabouts of the wife and his son.
She further submitted that she got herself examined in the
Institute of Human Behavior Allied Sciences which is
renowned institution of the country where the Doctors have
given a report that the wife is not suffering from any mental
ailment and there is no necessity for her to take any
medicine.

59. She contended that all the allegations about the
mental ailment as leveled by the husband are false as she is
not suffering from any mental disease even prior to her
marriage she was hale and hearty and at the time of marriage
when the same was being settled nothing was concealed to
be brought to the knowledge of the parents of the husband.
She further denied to have given any threats to them for
lodging any criminal or civil complaints, against husband and
his family members.

60. She contended that both husband and wife had
known to each other very well prior to the marriage as they
27

used to talk to one another for hours together on telephone
and the entire story pertaining to the mental ailment which
has been pleaded by the husband in his plaint apart from
being false was pleaded with a deliberate intention to mislead
the Court so as to establish the factum of cruelty, which is
one of the ground contemplated under Section 13 of the
Hindu Marriage Act for dissolution of marriage. She
contended that perhaps the truth remains that the entire story
has developed by the husband solely for the purposes to
avoid taking responsibility of her and her child. She submitted
that she has never misbehaved and mall-treated the husband
or his parents and the truth is that she has never committed
any cruelty and all the allegations which has been leveled
against her are baseless and unfounded and on the pressure
being exerted by the parents. She further in her written
statement submitted that since according to the report
submitted by the Institute of Human Behavior Allied
Sciences, it has been established that she is not suffering
from any mental problem and thus the continuance of child in
her custody is not detrimental to the interest of the child,
rather keeping the child in the custody of the husband would
be unsafe as he is in the habit of smoking and taking liquor.

61. She submitted that after the birth of the child on
2.12.2013 almost 5 years have lapsed and the husband has
never shown any affinity and affection towards the child nor
has ever made any effort to meet the child in any of the
28

functions. In response to the written statement the husband
filed his replication Paper no.76-A and denied the pleadings
of the written statement and the counter claim and also
denied the fact that the plaint submitted by him is not in
consonance to the notified Rules as provided under the Hindu
Marriage Act, and submitted that the plaint is maintainable
rather he submitted that her counter claim pertaining to the
restitution of conjugal rights since the wife herself is guilty of
staying away from the husband and guilty of failure in
discharging of her matrimonial obligations her relief as prayed
under Section 9 of the Hindu Marriage Act would be barred by
Section 23 as based on absolutely fictitious plea.

62. The husband in his replication submitted that the
allegations leveled by the wife that the petition under Section
13 filed by the husband is malafide so as to exert pressure on
the wife to agree upon for a dissolution of marriage by
consent and thus the proceedings drawn under Section 9 by
the wife deserves to be dismissed. In the replication he
denied the allegations leveled by the wife pertaining to the
veracity of the claim raised by the husband in the plaint.

63. Based upon the aforesaid pleadings the learned
trial Court framed the following issues.

1- D;k foi{kh }kjk ;kph ds lkFk tSlk fd ;kfpdk ds fofHkUu pj.kksa esa
vfHkdfFkr gS] dzwjrk dk O;ogkj fd;k x;k gS
2- D;k ;kph vO;Ld dh vfHkj{kk dks izkIr djus dk vf/kdkjh gS
29

3- D;k ;kph }kjk foi{kh dk fcuk fdlh ;qfDr;qDr vk/kkj ds ifjR;kx fd;k
x;k gS
4- i{kdkj fdl vuqrks’k dks ikus ds vf/kdkjh gS

64. In support of his contention the plaintiff presented
himself in the witness box as PW.1 and the wife presented
herself as D.W.-1. She also presented Dr. Pratibha Sharma
as D.W.-2. The husband produced the documentary
evidences Paper no.85-Ga to 8-Ga, which is the report given
by the Psychotherapist Center Jaipur, the treatment slips, the
report of Dr. Suyogya Prabhugaonkar, the document
pertaining to the treatment with Dr. Devendra Sabey, the
documents pertaining to the treatment by Dr. Pratibha
Sharma, document pertaining to the treatment under Dr. J.S.
Bisht Doon Hospital, the slips pertaining to her check-up
conducted by Psychologist and the bills in relation thereto. He
produced the suicide note in her hand writing which was
photographed by the husband by his mobile.

65. The wife in support of her evidence filed the list of
documents paper no.95-Ga to 13 which pertains to the
prescription of Doon Psychotherapist Center where she was
attended upon by Dr. Prabhita Sharma on 28.3.2013,
document pertaining to her registration in Lok Nayak Hospital
dated 13.5.2013, G.B. Pant Hospital registration card dated
15.5.2013, OPD card of Doon Hospital dated 20.5.2013 and
22.5.2013, documents pertaining to the treatment with the
30

Institute of Behavior Allied Sciences dated 27.5.2013 where
she was attended by Dr. Rajesh Rathi, the mark-sheet of
13.7.2005 issued in her favour from H.N.B. Garhwal
University of 1st year Bachelor of Arts, 2nd year Bachelor of
Arts, the mark sheet of MA 1st and 2nd year, certificate of All
India Bachelor of Vocation Training etc.

66. Based on the aforesaid pleadings and evidence the
learned trial Court by the impugned judgment dated
24.7.2015 passed the following decree.

(i) The suit for dissolution of marriage under Section 13 of
the Hindu Marriage Act based on cruelty was decreed.

(ii) The counterclaim filed by the wife under Section 9 of the
Hindu Marriage Act for restitution of conjugal rights
based on desertion was dismissed, and

(iii) The application under Section 26 filed by the husband
for custody of Riyarth was dismissed.

Hence the present appeals.

67. The Appeal No.80/2015 “Vivek Bhatia V/s Anju
Bhatia” which has been filed by the husband is against the
rejection of his application under Section 26 of the Hindu
Marriage Act whereby the learned trial Court has denied the
grant of custody of Riyarth Bhatia, the appeal has been
preferred on the following grounds:-

(i) The judgment is based upon improper exercise of
jurisdiction.

31

(ii) Maintaining of custody of the son with the wife would
be gross failure and miscarriage of justice.

(iii) The court has failed to consider the import of Section
26 of the Hindu Marriage Act.

(iv) The court has wrongly decided Issue no.2 without
reasons while denying custody.

(v) The court while recording finding on the behavior of
wife and mental state has wrongly decided Issue no.2
pertaining to Section 26 despite the fact of having
accepted the fact of disease which the wife was
suffering from because the attitude of sudden
behavior of anger may also become heinous and may
affect the child.

(vi) The court failed to consider that it was unsafe for a
child who was of only 3 and ½ years of age to ask him
to live with the mother who was suffering from a
mental disorder.

(vii) The Court failed to consider that whether it is safe to
give custody of child to the spouse who was suffering
from border line personality disorder.

(viii) The court failed to consider that looking to the
behavior and suffering of the wife who can attempt
suicide or cause danger to the life of the son.

(ix) The trial court failed to consider that the wife was
incapable to take care of the child and to maintain him
and she was not in a position to give a good homely
atmosphere as excepted from a Hindu family.

32

(x) The family court failed to consider that looking to the
husband’s engagement and the conditions of family
he would be in a better position to give good
atmosphere, love and affection and safe and healthy
life to the child as he has to work 15 days in a month
and rest of the time he can take care of the child and
all the more reason would be that the parents of the
husband were residing with the husband.

(xi) Since the wife is not in a sound mental state to
provide better healthy and safe life to the son, she
would not be able to provide a better education and
he would be at the mercy of the parents of the wife
despite of having his own father.

(xii) He expressed that he has got all the more love and
affection for the child and does not want his life to be
spoiled due to the dispute of husband and wife.

(xiii) He pleaded that as far as he known the child has
grown to about 3 and ½ year yet he has not been
admitted in the school.

(xiv) Comparatively he is in a better position to take care of
day-to-day requirement of his son Riyath and provide
him safe and secured life.

(xv) The finding on Issue no.2 pertaining to Section 26 with
regard to the custody was not rightly decided.
(xvi) The judgment on Issue no.2 is based upon
conjectures and surmises without recording any
finding on the same.

33

68. The Appeal No.82/2015 “Anju Bhatia V/s Vivek
Bhatia” which has been filed by the wife against the grant of
decree of divorce under Section 13 of the Hindu Marriage Act
thereby dissolving the marriage dated 6.5.2013, the appeal
has been preferred on the following grounds:-

(i) The judgment is against facts and pleadings and
material evidence available on record.

(ii) The judgment is based upon assumption and
presumption in favour of the husband dissolving the
marriage ignoring the factual aspect and other
circumstances.

(iii) The judgment is the consequence of non-application
of mind as has not considered the conduct of wife and
her intention to live with her husband and with regards
to the safety and future of the child.

(iv) The learned trial Court has failed to consider that
there has been a condonation of the conduct of the
wife by the husband, as they have lived together and
gave birth to a child, thus the marriage ought not to
have been dissolved.

(v) The learned trial Court has failed to distinguish
between the major and minor differences between the
husband and wife and to the manner in which they are
to be classified as to be a cruelty requiring the
dissolution of marriage.

34

(vi) The learned trial Court has not considered the fact
that to prove cruelty apart from producing himself in
the witness box the husband has not produced any
other independent person to proof cruelty.

(vii) The averments in the divorce petition on various facts
are with regard to the misbehavior with the parents of
the husband but the husband has failed to produce
them in the witness box even when they were capable
to appear, hence, an adverse inference was to be
drawn.

(viii) The learned trial Court has failed to consider the fact
that the averments made by the husband in the
petition under Section 13 of the Act, were
exaggerated and were afterthought. All the allegations
pertaining to the attitude of the wife towards the
husband and wife had been falsely interpreted without
taking into consideration that the wife was a well
educated lady and the allegations leveled against her
were unexpected.

(ix) The proceeding sunder Section 13 has been filed with
an intention to conceal the bad habits with which the
husband was suffering from.

(x) The learned trial Court has not considered the fact
that the human being with the passage of time and
age suffers from mental changes and these changes
do affect the thought process and at time a person
may be under and influence of depression may react
35

in the manner the wife has done but as per wife it is
not sufficient to dissolve the marriage.

(xi) She contended that the reliance placed upon the
medical reports and treatment of the wife holding her
to be suffering from, ‘border line disorder’ the finding
is bad as it was without considering the report of
Institute of Human Behavior Allies Sciences.

(xii) The learned trial Court has proceeded on conjectures
and surmises ignoring the evidence of D.W.2 Dr.
Pratibha Sharma who appeared in the witness box.

(xiii) The learned trial Court has wrongly interpreted the
statement of D.W.2 Pratibha Sharma where she has
stated that such a behaviour it is a consequence of
tendency of changed behavior, which is quite normal
and natural and cannot be taken as to be the ground
of divorce.

(xiv) The trial Court has failed to differentiate between the
pleading and proof because a bundle of pleadings are
required to be established by the proof and by cogent
evidence which was not decided by the Court.

(xv) The husband failed to prove any allegations,
misbehavior and cruelty against the wife.
(xvi) The trial Court had without any basis held that the
behavior of the wife towards the husband and her in-
laws was cruel some, abnormal and without any
cogent evidence. The trial Court has failed to consider
and had rather ignored the fact that by compelling the
36

wife to live at Dehradun is by ignoring her intention of
readiness and willingness to live together is cruelty by
husband.

(xvii) The judgment is based upon non-consideration of the
import of the provisions contained under Section 23 of
the Hindu Marriage Act.

69. The Appeal No.83/2015 “Anju Bhatia V/s Vivek
Bhatia” which has been filed by the wife against the denial of
Section 9, whereby the restitution of conjugal rights as a
counterclaim has been denied by the trial Court, the appeal
has been preferred by wife on the following grounds:-

(i) That the judgment is against the fact pleadings and
material available on record.

(ii) The judgment impugned has been rendered based on
pick and choose method which has affected the
decision making process resulting into dismissal of
counterclaim.

(iii) The evidence on record has not been considered in its
totality.

(iv) The wife is willing to live with her husband and to
discharge her matrimonial obligations after condoning
all acts, comments, behavior and attitude of husband
towards her.

(v) The trial Court has proceeded on assumptions and
presumption in favour of the husband and dissolved
37

the marriage between them by ignoring the factual
aspects and surrounding circumstances.

(vi) The trial Court has not considered the controversy
from judicious mind in its true prospective and had not
considered the possibilities and preponderance
involved in the case and had ignored the intention of
the wife to discharge her matrimonial obligations.

(vii) The trial Court has failed to consider that continuance
of the relationship in such circumstances would have
been safe for the son and to safe for the marriage,
which has been settled and considered as sacrament
amongst the Hindus.

(viii) The trial Court failed to consider that the husband has
condoned the allegations of wife which lead to the
birth of the child.

(ix) The wife’s case was that declining restitution based
on minor discrepancies which normally exists between
every husband and wife will not constitute to be
cruelty or desertion, calling for dissolution of marriage.

(x) The trial Court has ignored the facts that though the
husband has leveled allegations against the wife
about the cruelty against him and his parents but by
the conduct of the husband as he continued to live
with the wife he has condoned the behavior, hence
the trial Court ought to have continued the matrimony.

38

(xi) The trial court failed to consider that the allegations
leveled by the husband were too exaggerated and
which were unexpected from an educated wife.

(xii) The trial Court has ignored the evidence of Dr.
Pratibha Sharma, who was examined her, where she
has observed that she was not suffering from any
such chronic problem.

(xiii) That forcing the wife to live at Dehradun ignoring her
readiness and willingness to continue to reside with
the husband renders the judgment to be bad.

(xiv) The wife’s case was that the trial Court has absolutely
ignored the provisions of Hindu law particularly
Section 9 23 of the Hindu Marriage Act.

70. The learned family Court primarily concentrated on
Issue no.1 which was of a grave concern under the set of
pleadings raised by the parties which pertained to the
pleadings in relation to “cruelty”. The learned trial Court while
considering the pleadings held that looking to the pleadings
and evidences on record the wife was suffering from
personality disorder with regard to the incident of personality
disorder the husband has submitted, that the aggravated
attitude was so common and prevalent that it was practically
impossible to remember each and every date when such an
incident has chanced, though it always carved a threat of
anything untoward happening.

39

71. The husband in his pleading has contended and
also based upon the appreciation of the facts and evidence
on record shows that her attitude and threats, exerted by her
of committing suicide by adopting various modes, and the fact
that she being taken to the Doctor by the husband and
placing her under treatment at various places at Jaipur,
Mumbai and Dehradun etc, it has been a consistent report
that she was having some psychological problem, wherein
the doctors attending upon her, at all the three places have
opined that she was suffering from the personality disorder.
There might have been a minor variation in the opinions
extended but invariably all the doctors have observed that
there had been certain abnormality in the behavior of wife,
due to the aforesaid disease due to which she used to be in a
state of aggravated mental behavior.

72. On the pleadings raised in the plaint, and in
response to the plaint allegations there has been no specific
denial by the wife that in an aggravated state of mind she
often used to venture out of the home and humiliate the family
members by creating scene on the road. This attitude apart
from being causing humiliation to the family in public was also
spoiling the family environment where the aged old parents
who were ailing were also forced to face the arbitrary and
atrocious attitude of the wife. Thus as a matter of fact denial
made is evasive.

40

73. With regards to the suicide note which she placed
on the room on 22.2.2013, she has rather in her statement
admitted in her cross examination as under:-
“eSalqlkbZM uksV fy[kus dk dksbZ dkj.k ugh crk ldrh eqs ;g ;kn
ugh fd eSus lqlkbZM uksV dc fy[kk Fkk eSus nsgjknwu esa tks MkDVj ls
tkap djkbZ Fkh ml le; ;kph ogk ij ekStwn FkkA”

74. At least on reading of the aforesaid statement given
by the wife in her cross examination she admits the fact of
having written the suicide note may it be under whatsoever
circumstance, but not establishes that it was a conscious
admitted fact of wife, such type of a threat exercised by the
wife which has been admitted by her itself amounts to cruelty
as husband would always apprehend anything may chance
creating more trouble.

75. Rather she in her statements had admits the fact
that after consuming overdose medicines she had often
locked herself in the room along with the child, keeping the
family at lurk of any untoward happening may occur. This in
itself where the entire family is kept under the threat of the
wife committing suicide will amount to cruelty. Before learned
trial Court while scrutinizing the statement of D.W.2 Dr.
Pratibha Sharma who was adduced by the wife herself as a
witness has submitted as under:-

“tc ;g ‘kq# esa vk;h Fkh rks igys ds MkDVj us bldk ijh{k.k fd;k
Fkk mUgksus ckMZj ykbZu ilZusfyVh fMlvkMZj crk;k FkkA eSus bldk
41

mipkj crk;k Fkk nks ekg ckn 22 ebZ 2013 dks iqu% ns[kk rks ns[kus ij
blus dksbZ ckMZj ykbZu ilZusfyVh fMlvkMZj ds dksbZ y{k.k ugh fn[kkbZ
fn;s vkSj og ukeZy FkhA”

77. This statement of D.W.2 could be read from two
view points that at least at the time when the dispute arose,
resulting to filing of case for dissolution of marriage, she was
suffering from the disease and further that she was put under
the treatment and the Doctor too has opined she was
suffering from personality disorder.

78. One of the witness, Doctor Pratibha Sharma had
submitted in her statement that the patients who suffer from
personality disorders, they have got a inconsistent change of
mood, further D.W.2 has admitted the fact that she too has
witnessed that the wife suddenly becomes aggravated,
suddenly she shows that she is quite annoyed, suddenly she
shows an expression of unhappiness and also of anger.
D.W.2 further submitted that such a patient indulges into the
peculiar acts at time shows excessive anger and their act and
actions are unpredictable, in such a state sometimes yells
and is unable to adjust him or herself and there are the
instances, when such a patient becomes offensive.

79. The Court held that though right from the beginning
the wife used to deny such type of ailment but according to
the statement of D.W.2 the trial court held and on scrutiny of
her statement, she has experienced the changed behavior of
42

the wife. The trial court held that on scrutiny of statement of
D.W.2 Dr. Pratibha Sharma she herself has experienced the
inconsistent and changing behavior of the wife, which the
Court had held that on the scrutiny of the statement of D.W.1
D.W.2 the wife was suffering from a mental disease though
the nature of disease may not be clear but the attitude and
the behavior was quite apparent.

80. It is also proved on record and by evidence and
rather also admitted by wife in her statement that the wife had
pasted a suicide note in front of her room the photocopy of
which finds place at paper as Paper no.24-C-2/8, but
simultaneously the statement which she has made in cross
examination, rather she admits the transcription of suicide
note also and only explains as she too is not aware as to
under which circumstances she has written the suicide note,
which the Court held that she has admitted the suicide note. If
a spouse admits the writing of suicide note it goes without
saying that there is always a threat perception which
prevailed over the members of the family that untoward can
be happened at any point of time resulting into creating the
difficulties for family and entrapping them in criminal
proceedings.

81. In the cross examination the wife has also admitted
that she has sent a legal notice, asking the husband to reside
with her, wherein she has contended that she has expressed
43

her willingness to live with the husband but simultaneously
she also admits, that in the notice thus send by her through
her Advocate Mr. S.K. Gulati. She has also sent the notice to
the society, managing the flat belonging to the husband at
Mumbai, wherein she admits that she requested the society
not to permit the husband to enter the flat because of the
various disputes which has arisen between them. The society
initially was not permitting the husband to enter into the flat.
She contended that she is not instrumental in instigation of
the society to restrict the entry of the husband in the flat, she
admits that in the society where they resided together there
has arisen a dispute between her and her husband and a
warning letter was issued to the husband, which she had
placed on record in the proceedings under Section 24 of the
Hindu Marriage Act as Paper no.94-Ga in which she admits
that the notice thus sent to the society she has requested the
society to impose a restriction upon the husband from selling,
letting sale, or lease out the property.

82. It is an admitted case of the wife that in pursuance
to her notice to the society, the society has asked the
husband to submit a response. According to the husband he
has purchased the flat at Mumbai by talking loan from the
bank in which the wife is residing and the husband is residing
in another flat on rent. This would definitely constitute to be
cruelty. He submitted that since 29.1.2013 when they had
gone to attend the marriage at Kanpur and the wife has
44

misbehaved with the parents in law and has left the husband
and has gone to G.T. Road Kanpur, though she returned after
a couple of hours, this had occasioned on number of
occasions too would constitute to be continuous cruelty.

83. Almost she has virtually admitted about her attitude
and the incidents which has been narrated by the husband
indirectly in the cross examination, she submitted that at the
railway platform a dispute did arose between the wife and the
husband and since the train was about to arrive the wife was
in a shouting spree at the platform and the people standing at
the platform and created trouble, came to rescue him and the
child was given in the custody and somehow to avert the
situation the wife contended that she entered the train. She
contended that looking to the fact that the attitude of the
parents in law had never changed as all throughout the
journey till they reached Jaipur none of them communicated
with the wife nor even provided her food. She alleged that
while they were participating in the marriage she was
misbehaved by in-laws. She further in her cross examination
submitted that for the first time a dispute arose between them
in 2012. She admitted that she has complained to Navdhar
Police Station, Maharashtra against the husband in 2012.
She admits that after the incident of 2012, no such
acrimonious behavior was shown by the husband against the
wife.

45

84. She submitted that the assertions made by
husband that whenever there was a dispute which arose
between the husband and wife, Shalu Dheengra, Deepika
Dheengra and Garima Dheengra used to prevent them. The
wife denied the said fact and submitted that she loved Vivek
and there was no dispute between them nor there was any
dispute with her parents in law nor there had ever occurred
any misunderstanding. She submitted that the husband loved
her and behaved with her in a good manner.

85. With regards to the allegations as raised in her
written statement to the effect that the husband used to abuse
her she gave a contradictory statement at one place she
submitted that after 2012, there had never arisen any dispute
while on the other hand she submits that she does not
remember the date and month in which such an incident has
occurred in 2013. Looking to the statement to the accquisition
made by the husband to the wife no specific averments
pertaining to the dates and events have came on record nor
she has been able to prove the same.

86. The learned trial Court has recorded a finding that
with regard to the incident of physical assault in 2012, against
which she has lodged a complaint before P.S. Maharashtra,
she submitted that she suffered minor injuries, but later on
she said that there was no injury and she submitted that the
incident which was reported to the police station was done in
46

the presence of the parents of the husband, but then she
denied with regards to the dates and the time at which the
incident occurred, she submits that the police asked the
husband to get the medical examination conducted on her but
the same was not done. On a scrutiny of the statements of
wife with regards to the incident of 2012 and the injuries
which she has alleged to have suffered was not proved by her
before the Court below. The learned trial Court while
scrutinizing the statement of D.W.2 concluded that on a
comparative reading of the various medical examinations
conducted by various doctors attending on her showed that
the wife was suffering from a border line personality disorder
which had an effect on the attitude of the wife pertaining to
using abusive language and entering into physical assault.

87. The learned trial Court while scrutinizing the
evidences of D.W. 1 2 along with documentary evidence
has also held that the statement prove that there had been
inconsistent stand taken by the wife pertaining to the
incidents which has chanced, because the learned trial Court
has taken cognizance of the fact that in her cross examination
she has submitted that the plaintiff/husband had not
committed any wrong behavior but rather he loved her.

88. The Court further held that looking to the pleadings
and counter pleadings the wife has not specifically denied the
incidence of the misbehavior and attitude which she was
47

often suffering from, which has chanced at Jaipur and
Kanpur, further more the court held that in a cross
examination she has admitted the fact of writing the suicide
note, which was not denied but rather she has denied to
plead under what facts and circumstances she has written
that suicide note which shows that suicide note was written by
her thus the court rightly held that once the incidence of
Jaipur and Kanpur are admitted, once the fact of writing the
suicide note is admitted. The statement of D.W.2 and D.W. 1
shows that she was suffering from border line personality
disorder, once the consistent medical reports shows the
attitude of sudden spurt of mental behavior, the complaints
lodged by her to the police station about the incident of 2012,
the complaints which the wife has lodged to the society for
restraining the husband from selling the property. All these
together will amount to be a cruelty and such an act of wife
was acrimonious and the husband cannot be forced to spend
the life in such a duressed and atrocious circumstances and,
thus the court opined that all these activities including the
activity of physical assault and the false allegations leveled by
her as she was unable to substantiate as to what was the
reason for physical assaults leading to lodging of police
complaint. The Court has held that there was cruelty
exercised by the wife against the husband and, thus, the
learned trial Court concluded that there was a cruelty
commissioned by the wife. We find no reasons to agree with
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the reasons assigned by the Court below, in the impugned
judgment.

89. The contention of the wife that she was forcefully
taken to the Doctors for getting her medically examined with
regards to the ailment is absolutely misinterpreted by the
husband because she contended that she was not suffering
from any disease. Let it be so, then at least there was no
reason for the wife too, to get herself examined from Dr.
Pratibha Sharma who too had given a vivid opinion pertaining
to the impact and the effect of disease with which the wife
was suffering from. The court held that it is an admitted case
of the parties that she has been taken to the physiotherapist
on number of occasions, at number of place, all this we feel
could not be without any reason behind it, which was tried to
be denied by the wife that despite of the fact that she was
keeping well still she was forced upon to be taken to the
Doctor.

90. The Court held that the evidence proved that she
was taken to physiotherapist and according to the witness
adduced by the wife herself i.e. D.W.2, it showed that the wife
was brought to her for treatment along with her father and on
scrutiny of the statement of D.W.2 it was the father of the wife
who had informed the Doctor, while consulting her, that all of
a sudden the wife starts crying, all of a sudden she goes in
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depression, all of a sudden she gets angry, and all these
incidents were narrated by the wife herself to the Doctor.

91. It is an admitted case and as per the evidence on
record and the medial reports which shows that the
symptoms which the person shows who is suffering from such
disease and which has been also simultaneously admitted by
the doctor. Thus the Court rightly held that from all the
evidences there is no contradiction pertaining to the ailment
and treatment in relation to the wife. Thus the Court
concluded that the husband had been able to succeed to
prove that the wife has committed cruelty either by misleading
and also by distortion of facts about ailment. The Court below
held and we too feel that even if it is presumed from the
version of wife that she was not suffering from any such
mental problem but once she admits the attitude and behavior
which she has committed at Jaipur and Kanpur in itself shows
cruelty, as they were the public humiliation committed by wife
to husband and his family. When she admits the factum of the
writing of suicide note also proves cruelty as it has caused
cruelty by fear which has been done with the conscious state
of mind and thus the Issue no.1 has been rightly decided in
favour of the husband, holding that he has provided the facts
of cruelty as provided under Section 13 of the Hindu Marriage
Act.

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92. The learned trial Court while deciding Issue no. 2
with regards to the custody of child under Section 26 of the
Act, has decided the issue cursorily without considering the
respective evidences on record. The husband’s case is that
looking to the admitted case that wife was not in a sound
state of mind and looking to her aggravated attitude it would
not be safe for the child to continue to live with the mother,
but still rightly so looking to the tender age of the child where
love and affection of the mother is more important for giving
better life and care to the son the Court has rightly decided
the issue pertaining to the custody by giving it to the wife.
Apart from it, the disease with which she was suffering, it
cannot be ruled out that it could best be cured by company of
child with the mother, taking the child away from the mother,
there may be possibility that disease may aggravate further,
thus we feel that the custody to child wrongly retained with
the wife. Furthermore, the issue pertaining to threat
perception for the child, from his mother as advised by the
Doctor, it has nowhere come on record that at any point of
time ever, such incident has occurred where wife had
assaulted her child in an aggravated stage. Thus the reason
given by husband in his under Section 26 proceeding, is not
acceptable by us.

93. As far as Issue no.3 is concerned, pertaining to the
restitution of conjugal rights, where the wife has claimed that
she wants to spend her life with the husband as he has
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wrongly deserted her, the learned Court below has rightly
come to the conclusion that looking to the attitude and the
acrimonious behavior and that too in the circumstances when
the wife herself has pleaded that she is not suffering from any
mental disorder and then she continues to behave in the
manner by threatening the family by committing suicide and
by threatening the family by lodging complaints to the police
as well as in the society where husband has his flat, by
creating scenes on the station and, since, when the learned
trial Court while deciding Issue no.1, has found that the
cruelty stands established. In these circumstances forcing the
husband to continue with the matrimony would be too
atrocious and would not be conducive to permit the spouses
to live together, more particularly, when the misunderstanding
has gone to such an extent, where each of them are
engaging themselves in acts which is not expected from an
educated class of family and thus decreeing Section 9
proceedings would not be advisable under the given sets of
circumstances and, thus, the learned trial Court has rightly
denied the restitution of conjugal rights and, consequently
rightly rejected the counterclaim.

94. It has also came on record by evidence that the
wife is residing in the flat belonging to the husband and the
husband is residing in a tenanted accommodation which too
is flat, which too shows that they had been living without any
interference into the life of one another and even otherwise,
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they could not have lived happily looking to the past history of
litigation and allegations leveled against one another. Thus,
this Court feels that it would not be conducive to disagree with
the judgment of the learned trial Court dismissing the
counterclaim, by way of a decree for restitution of conjugal
rights.

95. Thus, consequently, Appeal No. 80 “Vivek Bhatia
V/s Anju Bhatia’ under Section 26 of the Hindu Marriage Act
is hereby dismissed. No order as to cost.

96. Appeal No.82 “Anju Bhatia V/s Vivek Bhatia”
preferred against the decree granted under Section 13 of the
Hindu Marriage Act dissolving the marriage is hereby
dismissed. No order as to cost.

97. Appeal No.83 “Anju Bhatia V/s Vivek Bhatia”
against the dismissal of counterclaim under Section 9 of the
Hindu Marriage Act for restitution of conjugal rights is
dismissed. No order as to cost.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
21.09.2017
Mahinder/

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