Smt Anita Dharam vs Vinod Kumar And Another on 14 December, 2017

(1 to 13)
[CMA-805/2010]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 805 / 2010
Smt Anita Dharam wife of Shri Vinod Kumar and daughter of Shri
Babu Lal Neniwal, by caste Khatik, aged about 30 years, resident
of village Kotkhawda, District Jaipur – presently resident of A-209,
Mandi Khitakan, Jaipur.
—-Appellant
Versus
Vinod Kumar son of Shri Badri Narain, by caste Khatik, aged about
33 years, resident of Ward No.13, Mohalla Khatikan, Tehsil Niwai,
District Tonk.
—-Respondent
__
For Appellant(s) : Mr. Saransh Saini, Adv.
For Respondent(s) : Mr. Syed Saadat Ali, Adv.
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment
Judgment reserved on : 04.12.2017
Judgment pronounced on : 14/12/2017

BY THE COURT :(Per Hon’ble Mr. Justice Deepak Maheshwari)

1. The instant appeal is directed against the judgment

decree dt. 25.02.2010, whereby ld. Family Judge No.1, Jaipur has

allowed the petition filed on 23.04.2007 u/S.13(1) of the Hindu

Marriage Act, 1955 (‘the Act of 1955’) by the husband-respondent

Vinod Kumar and passed the decree for dissolution of marriage

which took place on 11.12.2000 between the parties.

2. Facts in brief which are relevant for our consideration

are that out of the wedlock one girl child namely Riddhima was

born on 01.09.2003. The relations between the parties remained

cordial for some time, but thereafter because of matrimonial
(2 to 13)
[CMA-805/2010]

discord, wife-Anita went to her maternal home and stayed there.

Husband Vinod filed a petition u/S.9 (Ex.-1) of the Act of 1955 on

11.07.2005 before the ld. District Judge, Tonk. Good senses

prevailed in the parties and a compromise (Ex.-2) took place

between them on 20.05.2006. The husband agreed to keep his

wife peacefully and she also agreed to fulfill the matrimonial

obligations as per the customs traditions. But the compromise

could not materialize and Anita had to file an application (Ex.-A/1)

on 25.08.2006 seeking execution thereof. Meanwhile, because of

continuation of dispute between the parties, Vinod filed a petition

(Ex.-A/4) u/S. 13 of the Act of 1955 on 01.08.2006. Again

compromise (Ex.-A/2) took place between them on 25.09.2006

and both of them went to their matrimonial home straight away

from the Court. Vinod also got his petition filed u/S.13 dismissed

as withdrawn.

3. It appears that even thereafter the relations between

the parties remained strained. Vinod again filed a petition u/S. 13

of the Act of 1955 on 23.04.2007 mentioning therein that wife-

Anita continued to make false allegations against him and his

family members, she used to pick up quarrels and tried to lower

down them in self esteem. She even threatened to implicate them

in some false case regarding demand of dowry and also to send

them behind the bars. Even she hit the forehead of Vinod by

bucket, which caused grievous injury to him. It was further

alleged in the petition that family members of Anita took her to

Kotkhawda, her maternal place. She filed a false report (Ex.-7) on

13.01.2007 at Police Station Chaksu for the offence punishable
(3 to 13)
[CMA-805/2010]

u/Ss. 498A, 406 323 IPC against Vinod and his family members.

She continued to file various complaints against Vinod, one such

complaint u/S.12 of the Protection of Women from Domestic

Violence Act, 2005 (‘the Act of 2005’) was filed before the Court of

ACJM No.4, Jaipur City, Jaipur. She filed a false FIR against 27

persons implicating Vinod, his family members even neighbours

and got Vinod his parents arrested. She also raised demand of

Rs.2,00,000/- when Vinod went to take her back. In this

background, Vinod made the prayer for dissolving the marriage dt.

11.12.2000 by filing the petition u/S.13 of the Act of 1955.

4. In reply, Anita refuted all the allegations made in the

petition filed by Vinod and stated that she never went to her

maternal home without obtaining permission from her husband. It

was also averred that she did not pick any quarrel, neither

rebuked Vinod his family members; on the contrary, Vinod his

parents used to give beatings to her to pursue their demand of

dowry. She sustained 09 injuries on account of beating done by

Vinod and his family members. They forcibly took her to maternal

home and left there. In this situation, she had to file a complaint

u/S. 12 of the Act of 2005, wherein the Court of competent

jurisdiction took cognizance and ordered Vinod not to commit any

violence against her. She, therefore, prayed to reject the petition

filed by Vinod u/S.13 of the Act of 1955.

5. On the basis of the pleadings of both the parties,

following issues were framed by ld. Family Judge, Jaipur :-

(I)- Whether non-petitioner wife committed cruelty to her
husband ?

(4 to 13)
[CMA-805/2010]

(II)- Whether the petitioner is entitled for decree of
divorce ?

(III)- Relief ?

6. The petitioner Vinod got himself examined as PW-1 and

his younger brother Gajendra PW-2 was also examined. Besides

respondent Smt. Anita (DW-1), her younger brother Sanjeev

Kumar (DW-2) was also got examined on her behalf.

7. After hearing both the sides, ld. trial court decided the

issues in favour of husband-petitioner and awarded the decree

impugned dissolving the marriage dt. 11.12.2000.

8. Ld. counsel appearing for the appellant-wife submits

that ld. Trial Judge has not properly appreciated the evidence

available on record. Divorce has been granted mainly on the

ground that a departmental complaint with false allegations has

been filed by Anita against her husband before his employer,

which caused harm to his image and thus, cruelty has been

committed to them. His submission is that sufficient evidence is

available on record that in fact cruelty was committed by husband

of appellant and not by her, which is also established by various

documents produced in the evidence. Further, no action was taken

against Vinod on the basis of her complaint, so no cruelty has

been committed by her. In support of his arguments, ld. counsel

has relied upon certain judgments also.

9. Per contra, ld. counsel appearing for the respondent-

husband has supported the judgment impugned stating that the

evidence has been properly appreciated by ld. Family Judge and
(5 to 13)
[CMA-805/2010]

the judgment and decree impugned was passed perfectly in

accordance with the evidence available on record.

10. We have scanned the evidence available on record in

light of the arguments advanced by rival sides. There is no quarrel

on the point that a complaint was filed by Smt. Anita against her

husband Vinod before the Block Development Officer, Panchayat

Samiti Niwai. That complaint dt. 06.06.2007 (Ex.-6) is on record.

It appears from perusal of record that no action was taken against

Vinod on the basis of this complaint. Thus, it cannot be inferred

only on the basis of this complaint that cruelty was caused by

Anita against husband Vinod. At the same time, from perusal of

the judgment impugned also it does not appear that only on

account of this complaint (Ex.-6), ld. Family Judge has inferred

about the cruel behaviour of Anita. Besides this complaint, the

criminal proceedings initiated by her against Vinod and his family

members have also been taken into consideration which is very

much obvious by the observations recorded by the trial court on

Pg.13 of the judgment impugned.

11. Emphasis has been laid by learned counsel for the

appellant that pursuant to the demand of dowry, cruelty was

committed by Vinod and his family members towards Anita. In this

regard our attention has been drawn by the opposite side towards

the statement of Anita (Ex.-3) recorded in Cr. Case No.49/2007

(State v. Badri Narayan) pending trial before the Court of ACJM

Nol.1, Jaipur District, wherein she has admitted during cross-

examination that her in-laws did not raise any demand prior to the

marriage, no dowry was given at the time of marriage and the
(6 to 13)
[CMA-805/2010]

ceremony of marriage took place happily. It is also pertinent to

note that after seven years of marriage, FIR (Ex.-A/5) was filed on

13.01.2007 for the first time against Vinod and his family

members for the offence u/Ss. 498A, 406 323 IPC. In this fact

situation though the allegation of committing cruelty looses it

weight, however, we refrain ourselves from recording any definite

conclusion on this aspect, as it has been brought to our notice that

the criminal case No.49/2007 is yet pending trial.

12. Our attention has been drawn by counsel for

respondent to the statement of Vinod wherein he has deposed

that Anita did not like him since beginning stating that he was

working on a lower post. She also used to say that she committed

mistake by agreeing to marry him as various better matrimonial

proposals by doctor and engineer were available to her. PW-2

Gajendra has also deposed this fact. Anita has also stated in her

statement (Ex.-3) that she did not see Vinod personally prior to

marriage.

13. In background of these rival allegations against each

other, the cumulative effect was that the parties were not

maintaining cordial relations. DW-1 Anita has stated that she was

forcibly driven out by matrimonial home on 27.02.2003 and was

left at the residence of her maternal uncle at Jaipur. But it is

obvious on perusal of the record that no effort was made by Anita

for getting the matrimonial ties restored by filing application u/S.9

of the Act of 1955. On the contrary, such application was filed by

Vinod on 11.07.2005, which has been placed on record as Ex.-1. It

has been alleged on behalf of the appellant-Anita that despite
(7 to 13)
[CMA-805/2010]

compromise having been arrived at between the parties, she was

not taken back by Vinod. But, any how, it appears that another

compromise took place between the parties on 25.09.2006 and

both of them straight away from the court went to their

matrimonial home at Niwai. It is also evident from perusal of the

order-sheet dt. 25.09.2006 (Ex.A/3) that Vinod got his petition

filed u/S.13 of the Act of 1955 dismissed in view of the

compromise arrived at by the parties. This material is sufficient to

show that Vinod took initiative to resolve the discord and re-

establish the matrimonial ties.

14. PW-1 Vinod has stated that besides the quarrelsome

and cruel attitude of Anita towards him his parents, she used to

threaten them to implicate in some criminal case. He deposed that

in January,2007, she threw the bucket towards him which hit on

his head. This allegation is further corroborated by the charge-

sheet (Ex.-8) filed in FIR No.14/2007. The investigating officer has

mentioned in his conclusion that on 12.01.2007, some heated

discussion took place between Anita Vinod and out of anger,

Anita hit the bucket on the head of Vinod. This was found to be

the basic reason by the I.O., for which the dispute flared up

between the parties. In our view, such fact cannot be ignored to

infer about the conduct and behaviour of Anita.

15. Our attention has been drawn to the fact that FIR

No.14/2007 was lodged on the basis of report (Ex.-7) submitted

by Anita not only against Vinod his family members but also

implicating 27 persons including the neighbours and other

persons. It is pertinent to note that after investigation, charge-

(8 to 13)
[CMA-805/2010]

sheet (Ex.-8) was filed only against Vinod his parents, namely

Badrinarayan and Smt. Santosh for the offences u/Ss. 498A, 406

323 IPC. It further needs to be noted that after hearing the

charge arguments, all the three persons were discharged for the

offence u/S.406 IPC vide order dt.26.03.2008 (Ex.4). This clearly

shows that the FIR was lodged by Anita with exaggerated facts.

Counsel for the respondent has contended that this attitude of

Anita clearly demonstrates her quarrelsome and torturous

behaviour towards her in-laws and the husband. We are satisfied

with the contention advanced by ld. counsel that if the wife tries

to implicate her husband and parents in-laws in criminal

proceedings on the basis of unfounded and exaggerated

allegation, then it can only be assumed that she is committing

cruelty towards them.

16. It is also pertinent to mention here in this regard that

the scuffle that was alleged by Anita in report Ex.-7 to have taken

place on 13.01.2007, was not found established by the

investigating officer as mentioned in the charge-sheet (Ex.-8). It

has been categorically stated in it by I.O. that no manhandling or

beating by any person was found to have taken place at

Kotkhawda, when in-laws of Anita and their neighbours came over

there. Much emphasis was laid by counsel for the appellant in this

context on photos marked ‘A’ ‘B’, but the result of the

investigation stated above clearly negates the contention raised by

counsel for the appellant about such incident.

17. Our attention was also drawn by counsel for the

respondent to the fact that a complaint u/S. 12 of the Act of 2005
(9 to 13)
[CMA-805/2010]

was filed by appellant-wife Anita on 23.01.2007 in the Court of

ACJM No.4, Jaipur Metropolitan not only against the respondent-

husband Vinod but also against his parents, sister Sunita, brothers

Ashok Gajendra, maternal uncles namely Kailash, Kamlesh,

Subhash Surendra. Counsel has specifically mentioned that all

the maternal uncles named above are residing at different place in

Tonk. His contention is that implicating all the family members,

who were residing at different places, shows that the conduct and

attitude of Anita was quarrelsome and revengeful towards the

family members and relatives of her husband, which tantamounts

to cruelty towards them. We do not find any reason to reject this

contention.

18. In light of the above, the judgments on which reliance

has been placed by counsel for the appellant are not found to

apply in the given facts. In case of Darshan Gupta v. Radhika

Gupta, reported in (2013)9 SCC 1, the facts of the case were

entirely different. In the case referred above, the appellant-

husband, despite the medical advise and warning, proceeded with

unsafe cohabitation with wife causing severe cognitive deficiencies

to her. When the plea of cruelty was taken by the husband against

his wife on account of her intemperate behaviour and she being

suffering from incurable unsound mind and mental disorder, the

ground of cruelty was not accepted by the Hon’ble Supreme Court.

This is not the situation in the case in hand. On facts, the

husband-respondent cannot be held liable for the conduct and

attitude of his wife.

19. In case of P.Jayaram v. P. Sudha Laxmi, reported in
(10 to 13)
[CMA-805/2010]

2014(2) HLR 33 and Bhola Kumar v. Seema Devi, reported in

2015(3) HLR 462 (Pat.), it was observed by the Andhra Pradesh

Patna High Court respectively that unless it is proved that filing

of the complaint was motivated and aimed at harassing family, it

cannot be treated as basis constituting cruelty and cannot be valid

ground for seeking divorce.

20. In this regard, it may be observed that appellant Anita

filed the report (Ex.-7) against 27 persons, out of which, only 03

person were charge-sheeted and after hearing the charge

arguments, they were also discharged from the offence u/S.406

IPC. This clearly demonstrates that the report was lodged with

exaggerated facts and with the intention to implicate and harass

as many persons as possible. It requires to be noted further that

though the charges were framed for the offences u/Ss. 498A

323 IPC on 26.03.2008, even after almost 10 years, the

prosecution evidence has not yet been completed. Similarly, the

complaint filed by Anita u/S.12 of the Act of 2005 against 10

distant relatives staying at different places, exemplifies the

conduct and intention of the appellant. In such circumstance,

there is no hesitation for us to hold that the intention and conduct

of the appellant-wife was to get as many persons as possible

implicated and to harass them by prolonging the criminal

proceedings as far as possible.

21. Besides this, our attention has also been drawn to the

fact that DW-2 Sanjeev Kumar, brother of appellant Anita has

admitted in his cross-examination that after the respondent filed

petition u/S.9 of the Act of 1955, Anita proceeded to institute
(11 to 13)
[CMA-805/2010]

three criminal cases against husband Vinod and his family

members. It has also come on record that the complaint under the

Protection of Women from Domestic Violence Act, 2005 was filed

before the Court of ld. ACJM No.4, Jaipur Metropolitan showing the

address of Anita at Shyampuri, Hida Ki Mori, Ramganj, Jaipur.

Complaint u/s. 125 Cr.P.C. was filed while showing her address at

Shastri Nagar, Jaipur and FIR No.14/2007 was filed at Police

Station Chaksu showing the address of Anita at Kotkhawda. This

fact goes to show that wife Anita intended to implicate her

husband Vinod and other family members not only in various

criminal proceedings but also in the Courts situated at different

places. This was simply with the intention to harass and pressurize

the husband and his family members.

22. It can be easily inferred by the facts mentioned above

that appellant-wife Anita did not leave any stone unturned to

harass and tease Vinod and his family members.

23. In case of Praveen Mehta v. Inderjit Mehta,

reported in (2002) 5 SCC 706, the Hon’ble Apex Court has held

as under:-

“21. Cruelty for the purpose of Section 13(1)(i-a) is to be
taken as a behaviour by one spouse towards the other, which
causes reasonable apprehension in the mind of the latter that
it is not safe for him or her to continue the matrimonial
relationship with the other. Mental cruelty is 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 facts and circumstances of the case. A feeling of
anguish, disappointment and frustration in one 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. In case of mental cruelty it
will not be a correct approach to take an instance of
(12 to 13)
[CMA-805/2010]

misbehaviour in isolation and then pose the question whether
such behaviour is sufficient by itself to cause mental cruelty.
The approach should be to take the cumulative effect of the
facts and circumstances emerging from the evidence on
record and then draw a fair inference whether the petitioner in
the divorce petition has been subject to mental cruelty due to
conduct of the other.”

24. In case of A.Jayachandra v. Aneel Kaur, reported in

(2005) 2 SCC 22, the Hon’ble Apex Court has observed as

under :-

“10. the expression ‘cruelty’ has not been defined in the Act.
Cruelty can be physical or mental cruelty which is a ground for
dissolution of marriage may be defined as willful and
unjustifiable conduct of such character as to cause danger to
life, limb or health, bodily or mental, or as to give rise to a
reasonable apprehension of such a danger. ………………………………”

25. It is relevant to mention here that Hon’ble Apex Court

in Naveen Kohli v. Neelu Kohli, reported in (2006)4 SCC 558

has held as under :-

“51. The word “cruelty” has to be understood in the ordinary
sense of the term in matrimonial affairs. If the intention to
harm, harass or hurt could be inferred by the nature of the
conduct or brutal act complained of, cruelty could be easily
established. ………………………………………………………………………………”

26. Having considered the facts circumstances of the

case in entirety, we are of the considered view that sufficient

evidence is available on record to clearly establish that the

mental cruelty was meted by appellant Anita towards her

husband respondent Vinod Kumar and in our view, no error has

been committed by the ld. Family Judge in holding the issue

No.1 regarding the appellant wife committed cruelty to her

respondent husband Vinod proved and who is entitled for getting
(13 to 13)
[CMA-805/2010]

a decree of dissolution of marriage on the ground envisaged

u/S.13(1)(ia) of the Act of 1955.

27. Consequently, while upholding the judgment decree

dt. 25.02.2010 passed by the ld. Family Court No.1, Jaipur City,

Jaipur, the appeal deserves to be dismissed and is accordingly

dismissed.

(DEEPAK MAHESHWARI),J. (AJAY RASTOGI),J.

Rm/-

Leave a Comment

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