Sonia Kuruvilla vs Simon Chaudhary on 3 November, 2017

FAO No.1088 of 2016(OM) # 1#

IN THE HIGH COURT OF PUNJAB HARYANA AT
CHANDIGARH.

FAO No.1088 of 2016(OM)

Date of Decision:-03.11.2017

Dr. Sonia Kuruvilla.

……Appellant.

Versus

Dr. Simon Chaudhary.

……Respondent.

CORAM:- HON’BLE MR. JUSTICE JASWANT SINGH

Present:- Mr. Vipul Aggarwal, Advocate for the Appellant.

Mr. Ashish Chopra, Advocate for the respondent.

***

JASWANT SINGH, J.

1. Appellant-Wife-Sonia Kuruvilla has filed the present

appeal aggrieved against the judgment dated 19/01/2016, whereby

petition filed by respondent husband-Simon Chaudhary under Section

10 of the Divorce Act 1869, has been allowed and consequently,

marriage dated 05/11/2012 between the parties was dissolved on

account of subjecting the husband to severe mental cruelty by wife.

2. In brief, facts of the case are that the parties to the present

‘Lis’ are Christian by religion, doctors by profession and their marriage

was solemnized on 05/11/2012 according to Christian rites and

1 of 11
09-11-2017 01:55:49 :::
FAO No.1088 of 2016(OM) # 2#

ceremonies at a Church of South India, Christ Church,

Thiruvananthapuram (Kerala). Thereafter, the parties started residing at

their matrimonial home at House No. 823, Sector 2, Panchkula. The

matrimonial home consisted of the parents and brother of the husband,

wife and the husband himself. However, as per the petition filed for

divorce, after a few days, the behaviour of wife started to change and

she used to get recurrent attacks of insanity. Further, as per the

allegations, wife wanted to reside separately from the joint household

of husband and after a few months, husband allegedly accepted the

demand of wife and shifted to a separate household in January 2013 at

House No. 139-B, Sector 4, Panchkula. It is further alleged by the

husband that despite shifting to the said separate household, wife used

to leave for her parents home i.e. Kerala after every 15 days and

subsequently, she wanted the husband to shift to Kerala and start the

Medical practice there. However, husband refused to shift to Kerala,

which led to numerous incidents of alleged cruelty as mentioned in the

divorce application because of which the parents of husband were

constrained to file a suit for permanent injunction, in which an order

was passed, whereby, wife was injuncted from entering the House of

parents situated at House No 823, Sector 2 Panchkula. It is further

alleged by the husband that a false FIR No. 453 dated 06/09/2013 was

lodged against him, his parents and brother by the wife under Sections

323, 406, 498-A, 506 and 34 of IPC which included leveling of serious

allegations of unnatural sex, harassment etc. Simultaneously, an

2 of 11
09-11-2017 01:55:51 :::
FAO No.1088 of 2016(OM) # 3#

application under Section 12 of the Domestic Violence Act was also

filed by her and at present, she is earning handsomely and has got a job

as a Resident Doctor in Sector 32, Government Hospital, Chandigarh.

With these allegations, husband had prayed for grant of decree of

divorce on account of cruelty having been committed by the wife.

3. On the other hand, in the written statement filed by the

wife, it was alleged by her that after 5-10 days of marriage it was the

husband and his family members who started harassing her for bringing

less dowry. As per her, the family of the husband wanted her to earn

money, as she is M.D in Gynecology and feed them. It was further

alleged that in fact, cruelty has been committed by the family members

of the husband, as in December 2012, she had conceived but husband

and his parents did not want a child and therefore, sought abortion. In

order to avoid the said abortion, she went to Kerala but the pregnancy

could not be saved. It was further alleged that on 10/01/2013, she was

beaten up by the family of the husband and again cruelty was

committed upon her. Apart from these, numerous other incidents were

mentioned, refuting the incidents mentioned by the husband in his

divorce petition. It was rather stated that she does not intend to take

divorce and wants to rehabilitate with her husband. Remaining

averments were denied. However, lodging of an FIR and complaint

under Domestic Violence Act were admitted to be correct.

4. In order to prove their assertions, both husband and wife

appeared as the sole witnesses of the case, as PW-1 and RW-1

3 of 11
09-11-2017 01:55:51 :::
FAO No.1088 of 2016(OM) # 4#

respectively. After hearing both the parties, the learned Trial Court

granted the husband divorce on the ground of cruelty. The Court, after

analysing the other evidence came to a conclusion that the wife was

indeed committing cruelty upon him, by discussing the aggravating

circumstances. Hence the present appeal.

5. Learned Counsel for the appellant has argued that the

findings returned by the Ld. Trial court while coming to the conclusion

that cruelty was committed by the wife-appellant, is completely against

the record and liable to be set-aside. He has argued that baseless

allegation of that appellant-wife was suffering from recurring attacks of

insanity, was found to be absolutely incorrect and this fact itself shows

that the respondent-husband intends to malign the reputation of the

wife and also can go to any level to allege false allegations against her

in order to succeed in the case of divorce. He has further argued that

the findings returned by the court below that the abortion was not due

to husband’s act and conduct, is also wrong and perverse because the

evidence led on file reveals that it was on account of cruelty meted out

to her by the family members of the husband along with the husband,

which led to abortion. It has been also argued that the findings of the

court below that no dowry was demanded is also completely baseless

and against the evidence. It is stated that the FIR is pending trial and

fixed for PWs, whereas in the complaint under Domestic Violence Act,

the evidence of complainant-wife is to be recorded. It has been finally

argued that no cruelty has been committed by the wife which would fall

4 of 11
09-11-2017 01:55:51 :::
FAO No.1088 of 2016(OM) # 5#

under the ambit of section 10 (x) of the Divorce Act 1869, as per

which, there should be a harmful or injurious intent on part of the

spouse, for the other spouse to have a reasonable apprehension in his

mind that he cannot co-habit with her. However, none of the ingredient

of Section 10(x) of 1869 Act are made out. Hence, prayer has been

made for acceptance of the appeal and setting aside of the impugned

judgment passed by the trial court.

6. On the other hand, learned Counsel for the respondent-

husband has argued that the Ld. trial court had rightly come to a

conclusion that appellant-wife had committed cruelty upon the husband

and therefore, the well reasoned findings returned by the trial court

does not warrant any interference. He has however, argued that

although it is not proved that any dowry articles were given, still, in

case the court directs for an amicable settlement, he is ready to

compensate to the extent of 17 lakhs (which includes alleged household

articles given to the respondent-wife at the time of marriage to the tune

of Rs. 14 lakhs and Rs. 3 lakhs spent by wife’s family at the time of

solemnizing marriage in Kerala). Thus, he has prayed that the present

appeal may be dismissed.

7. I have heard Ld. counsel for the parties and have perused

the paper book as well as the record with their able assistance very

minutely and have come to a conclusion that the present appeal is

devoid of any merit and deserves to be dismissed.

Before adverting to the controversy involved in the present

5 of 11
09-11-2017 01:55:51 :::
FAO No.1088 of 2016(OM) # 6#

case, it would be apposite to reproduce extracted Section 10 (x) of the

Divorce Act, 1869 which is applicable to the present case:

” 10(x) the respondent has treated the petitioners with such

cruelty as to cause a reasonable apprehension in the mind

of the petitioners that it would be harmful or injurious for

the petitioner to live with the respondent ”

A bare perusal of the said section would show that in case,

either of the party to the marriage has a “reasonable apprehension” in

its mind that it would be harmful or injurious for him/her to reside with

the spouse, then divorce can be granted to the aggrieved party.

Meaning of the word “reasonable apprehension” would mean, to my

mind, an apprehension which a rational or sensible human being, living

an ordinary life could have. It has to be interpreted to mean the

practical difficulties that a spouse may comprehend/face while living

with the other spouse. As far as the words “harmful or injurious” are

concerned, they may not be read as the literal dictionary meaning given

to them. Rather, they have to be read co-jointly with the word

“reasonable apprehension”. Consequently, “harm or injury” would

include mental/physical welfare of a human being and his/her

immediate family members. Further, the word “mental cruelty” is

basically a state of mind and feeling with one of the spouses, due to the

behaviour or behavioural pattern by the other. Unlike the case of

physical cruelty, mental cruelty is difficult to establish by direct

evidence. It is necessarily a matter of inference to be drawn from the

6 of 11
09-11-2017 01:55:51 :::
FAO No.1088 of 2016(OM) # 7#

facts and circumstances of the case. A feeling of anguish,

disappointment and frustration in one’s spouse caused by the conduct

of the other can only be appreciated on assessing the attending facts

and circumstances in which the two partners of matrimonial life have

been living. The inference has to be drawn from the attending facts and

circumstances taken cumulatively. The approach, therefore, should be

to take the cumulative effect of the facts and circumstances emerging

from the evidence on record and then draw a fair inference.

8. Accordingly, the present case has to be analyzed and

decided by keeping the aforesaid definition and the meaning given to

the words of Section 10(x) of Divorce Act, 1869.

In the present case, it is apparent from the record that wife,

while appearing in the witness box as RW 1 has admitted in her cross

examination that prior to matrimonial alliance, the husband frequently

used to talk to her on her mobile phone and when her ‘talking plan

pack’ used to come to an end, it was the husband who was getting the

same recharged, telling her that it was his duty to do so. Meaning

thereby, an intimacy had developed between both the partners.

However, the things took a down turn after marriage and a situation

arose where appellant-wife filed a criminal complaint against the

husband and his family members for seeking dowry from her.

However, it has come on record and it stands un-rebutted till date that

no list of dowry articles was ever given or attached alongwith the

police complaint (Exhibit P 53). However, the cross-examination

7 of 11
09-11-2017 01:55:51 :::
FAO No.1088 of 2016(OM) # 8#

conducted upon the wife speaks volumes of her act and conduct,

whereby she has admitted that she had not gone through the contents of

the complaint on the basis of which FIR (Exhibit P-54) was lodged and

in fact, it is her uncle who has been pursuing the case. She falsely

stated that the said FIR was lodged by the police on her own and in fact

she had never pressed for the same. This fact cannot be taken to be

correct because had she not been pursuing the FIR, it would have been

cancelled/compromised at that time itself. Further, this statement looses

its credibility because respondent-husband was remanded to police

custody after arrest (supported by appellant wife and her uncle Berry

Thomas) and it was after remaining in police custody for a few days

that husband was able to secure his bail. Had the wife not lodged the

FIR out of her own will, she could not have let her husband stay in jail

and oppose grant of bail. However, admittedly, the case is still pending

trial before the criminal court for PWs and this shows wife has been

pursuing the same. This conduct of the appellant-wife itself goes a long

way to prove that she, very cleverly, has tried to deny the respondent-

husband a decree of divorce by stating that no FIR was lodged at her

instance. Although, it is settled position of law that a stray incident of

complaint alone cannot be construed to be an act of cruelty. However,

this act of wife to file an FIR and get the husband arrested and

subsequently, during divorce proceedings, trying to disown the same,

by stating that police had lodged the FIR on its own, proves volumes

about the act and conduct of the wife. Not only this, a complaint under

8 of 11
09-11-2017 01:55:51 :::
FAO No.1088 of 2016(OM) # 9#

the Domestic Violence Act is also pending consideration before the

criminal courts.

Not only this, the allegation of abortion as levelled against

the husband were rightly found to be incorrect by the Ld. Trial Court

because in the cross-examination, wife has admitted that there were

complications in the pregnancy and still she preferred to leave for

Kerala where pregnancy was ultimately terminated. It is on record that

husband has been providing the wife with money to buy the tickets or

has been by giving tickets to the wife for going to Kerala time and

again. In fact, it seems that it was the wife who was adamant to leave

for Kerala despite there being complications in pregnancy and despite

being a doctor herself (a gynaecologist) and thus, it cannot be accepted

that she did not know what could be the repercussions for travelling

with such complications in pregnancy. Consequently, it cannot be

entertained that husband or his family had anything to do in the

termination of the pregnancy as alleged by wife and thus, false

allegations were leveled against him.

It has further come on record that despite husband shifting

his matrimonial home in Sector 4 Panchkula, a brawl took place in the

house of parents of husband at Sector 2 Panchkula, for which a PCR

was called and the parents and husband had to face harassment and

embarrassment before the neighbours. Once, wife had been provided

with a separate matrimonial home, it is completely unjustified for her to

go her parents-in-law’s home and create a scene there. Not only this, it

9 of 11
09-11-2017 01:55:51 :::
FAO No.1088 of 2016(OM) # 10#

has also come on record that aged parents of husband had to file a suit

for permanent injunction, so as to restrain the wife from entering their

house in Sector 2 Panchkula (Ex P-35).

In this way, it has, clearly been established on record that the marriage

between the parties is all but over and appellant-wife has been

subjecting the husband-respondent with mental cruelty to such an

extent that he has a valid reasonable apprehension in residing with

wife-appellant as harm or injury can be caused to him. It must be kept

in mind that the present appeal is being decided by keeping into

consideration the ingredients of Section 10(x) of 1869 Act, as per

which a reasonable apprehension is enough.

9. To the mind of this court, married life is required to be

reviewed as a whole and the conduct must be persistent for a fairly

lengthy period and where the relationship has deteriorated to an extent

that because of the action/ behaviour of a spouse, the wronged party

finds it extremely difficult to live with the other party any longer, then,

this must tantamount to be ‘reasonable apprehension’ for being caused

harm or injury. Since, in the present case, there is enough evidence on

record to show incidents of harassment as well as criminal litigation

pending between the parties, it is a fit case where divorce is required to

be granted. Another factor that weighed heavily in the mind of this

court is that it stands established that both the parties, well placed

doctors, have been living separately for the past four years and there

seems to be no possibility of rehabilitation.

10 of 11
09-11-2017 01:55:51 :::
FAO No.1088 of 2016(OM) # 11#

10. Thus, keeping in view the totality of the facts and

circumstances of the case in hand and especially keeping in view the

definition of Section 10(x) of the Divorce Act, 1869, this court is of the

confirmed opinion that the respondent-husband has been treated to

such cruelty which has caused a reasonable apprehension in his mind

that it would be harmful or injurious for him to live with the appellant-

wife. Accordingly, I affirm the findings returned by the learned trial

Court and dismiss the present first appeal, being without any merit.

( JASWANT SINGH )
JUDGE
November 3rd, 2017
Vinay
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No

11 of 11
09-11-2017 01:55:51 :::

Leave a Comment

Your email address will not be published. Required fields are marked *