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[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.
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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
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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as withdrawn.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
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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 ?
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[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
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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
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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
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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-
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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
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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
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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
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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
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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
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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/-