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D K vs S on 3 May, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 6th March, 2019
Pronounced on: 3rd May, 2019

+ MAT.APP (F.C.) 97/2017

DK ….. Appellant
Through: Mr.Bharat Bhushan, Advocate.

versus
S ….. Respondent
Through: Mr.Basant Gupta, Advocate.

CORAM:
HON’BLE MR. JUSTICE G.S. SISTANI
HON’BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J.

MAT.APP(F.C.) 97/2017

1. The present appeal has been filed by the appellant/husband assailing
the order of the Family Court dated 22.04.2017 whereby the petition
filed by the husband under Section 13 (1) (ia) (ib) of the SectionHindu
Marriage Act, 1955 (hereinafter referred to as ‘HMA’) has been
dismissed by the Family Court.

2. Brief and necessary facts for adjudication of the appeal are that the
marriage between the parties were solemnized on 20.01.2003 at Delhi
according to Hindu Rites and Ceremonies. After the marriage the
parties cohabited at Rohtak, a daughter namely Vanshika was born out
of the wedlock on 22.11.2004.

MAT. APP (F.C.) 97/2017 Page 1 of 18

3. The case of the appellant as pleaded before the Family Court was that
it was a simple marriage without any dowry. The behaviour of the
respondent changed after six months of the marriage itself and she
along with her parents started harassing the appellant who is serving in
the Delhi Police. She compelled the appellant to deposit half of his
salary in her account and on resistance she left the matrimonial home,
without his permission in January, 2004.

4. The appellant thereafter visited the parental house of the respondent
and requested her parents to advise her to return back, but she refused.
A month later he again visited her parental home, with the biradari
panchayat and some relatives and with their intervention the
respondent returned in February, 2004. The parties lived together upto
January 2005 and during this period were blessed with a daughter.
After living together for some time happily, behavior of the
respondent again changed and she again left the matrimonial home in
January, 2005 and when the appellant requested her to come back, the
parents of the respondent reiterated their demand for deposit of his
50% of his salary in her account.

5. Again on 6.6.2006 a panchayat was convened at the parental house of
the respondent and the respondent agreed to return after receiving six
gold bangles, which were kept by her mother. Despite an undertaking
to the panchyant that the family of the respondent would not interfere
in the life of the parties, they did not stop interfering and on 6.3.2007
when the appellant was away on duty, the brother of the respondent
came with three other persons and took her back. She also took away

MAT. APP (F.C.) 97/2017 Page 2 of 18
all her jewellery along with some silver ornaments of the appellant’s
mother.

6. Again on 17.3.2007 the appellant with some respected persons of the
family and the village went to the parental house of the respondent,
but her family members refused to talk and send the respondent back
to the matrimonial home. It is pleaded that her mother and brother
misbehaved with the panchayat members and threatened to implicate
the appellant and his family, in false dowry cases. The custody of the
minor daughter Vanshika was also denied to the appellant.

7. Further, claims of the appellant were that, again on the occasion of the
marriage of his younger brother, which was to be held on March,
2011, a panchayat was conveyed on 2.1.2011, but the parents of
respondent refused to send her back. On 25.12.2011, another attempt
was made by the appellant to get the respondent back but he was
unsuccessful. The appellant filed a petition under Section 9 of HMA
at Rohtak, but when the respondent showed her unwillingness to join,
the said petition was dismissed on 1.6.2007. Respondent filed a case
under Section 12 of the Protection of Women from Domestic
Violence, 2005 (hereinafter referred to as ‘SectionD.V. Act’) at Sonepat
which was dismissed. To create more trauma for the appellant, the
respondent handed over their minor daughter to her sister and jija at
Gurgaon. Reconciliation efforts at the family counseling centre
Rohtak also failed. It was thus the case of the appellant that the
respondent had inflicted mental cruelty upon him and deserted him
without any cause and thereafter the present petition was filed seeking
dissolution of marriage on the grounds of ‘cruelty’ and ‘desertion’.

MAT. APP (F.C.) 97/2017 Page 3 of 18

8. Respondent had contested the petition and filed her written statement.

Factum of marriage and birth of the daughter were not denied.
However, it was denied that it was a simple marriage, as according to
the pleading of the respondent, the marriage was solemnized with
great pomp and show and lots of gifts, ornaments, furniture, electronic
gadgets, etc. besides cash were given, which also did not satisfy the
demand of the appellant. It was pleaded that the respondent was
subjected to harassment, cruelty and violence by the appellant and his
family for dowry and on 19.3.2007 she was thrown out of the
matrimonial home, only in three apparels. She was thus forced to live
at her parental house except for some period when she stayed at her
sister’s house. It was further the case of the respondent that she had
filed a petition under Section 125 Cr.P.C claiming maintenance, which
was settled on 6.11.2012 and the appellant agreed to pay Rs.9,000/-
per month towards the maintenance of the daughter, which was to be
enhanced as per the increments in the salary of the appellant.
Respondent claims that the appellant had also filed a case claiming the
custody of the minor daughter which was contested by her. In the
written statement it was denied that she had harassed the appellant or
demanded the deposit of 50% of his salary in her account. It was
denied that the respondent left the matrimonial home on her own
accord on several occasions, as alleged by the appellant. It was
pleaded that despite having given more than Rs.10,00,000/- at the time
of marriage, the appellant and his mother had on 21.1.2003
subsequently demanded Rs.5,00,000/- on account of the fact that the
brother of the appellant had been selected in Delhi Police and would

MAT. APP (F.C.) 97/2017 Page 4 of 18
get an appointment only on the payment of money. On the same day,
respondent informed her father, who then called the appellant and his
brother and gave him Rs.5,00,000/- on 26.1.2003, after borrowing
money from two people. Thereafter, the brother of the appellant
Pawan got appointed on 27.1.2003. A serious allegations in the
written statement was also made that the appellant took the respondent
to a doctor on the pretext of medical examination but after the
ultrasound was conducted and it was revealed that the fetus was a
female child, mother of the appellant created a scene on 8.5.2004 and
compelled the respondent to get the child aborted. However, due to
strong resistance of the respondent, they did not succeed in their
design. It was denied that the appellant had given her six gold bangles
or that the appellant made any effort to take her and the daughter back
to the matrimonial home. It was averred that marriage of the sister of
the respondent was to be solemnized on 12.3.2007 and brother of the
respondent had visited the matrimonial home in the night of 4.3.2007
to bring her to her parental home on the occasion of the marriage. It
was denied that respondent left the home without any cause or that she
took away her istridhan or the dowry articles. As to the minor
daughter living at the house of younger sister, it was pleaded in the
written statement that this was for the purpose of studies and to keep
her away from the threats of the appellant.

9. The appellant filed a replication to the written statement and denied
the averments made therein, while reiterating the averments of the
divorce petition.

MAT. APP (F.C.) 97/2017 Page 5 of 18

10. On the pleadings of the parties, following issues were framed on
6.3.2013:

“1. Whether the petitioner has been treated with
cruelty by the respondent after solemnization of
marriage? OPP

2. Whether the respondent has deserted the petitioner
for a continuous period of not less than two years
immediately preceding the presentation of this petition?

3. Relief.”

11. In support of his case, the appellant examined himself as PW-1 and his
neighbour Mahender Sharma as PW-2. Respondent examined herself
as RW-1. Both the parties filed their respective affidavits leading
evidence and both parties cross-examined each other.

12. The appellant testified on the lines of the petition and relied upon a
letter dated 14.1.2003 (Mark-A); photocopy of letter received under
SectionRTI Act about Km. Vanshika’s admission in Miniland Preparatory
School, Sonepat, Haryana (Mark-B); photocopy of certificate issued
by the Red Cross Society, Rohtak (Mark C); photocopy of letter dated
21.12.2011 (Mark-D colly); photocopy of ration card (Mark-E colly)
and photocopy of statements, order dated 6.11.2012 in maintenance
petition no. 169/2012 passed by Shari Kamlesh Kumar, Additional
Principal Judge, Family Courts, Rohini (Mark-F).

13. On being cross-examined, PW-1 clarified that he was given normal
furniture, a motorcycle and gold ring apart from Rs.11,000/- during
the marriage and related ceremonies. He denied the suggestion that
the marriage was not solemnized in a simple manner and testified that
there were about 200 persons in the ceremony. He testified that
during the pregnancy of the respondent he had taken her to the doctor

MAT. APP (F.C.) 97/2017 Page 6 of 18
on several occasions and had given the expenses for the delivery of the
child. He denied that Rs.5,00,000/- were demanded for the
appointment of his younger brother. It was also denied that any costly
items like television, fridge, gold etc. were taken on ‘lagan’ or on any
other ceremonies. He denied that the appellant did not get any
ultrasound of the respondent conducted during pregnancy and further
stated that he had no knowledge whether the gender of fetus was
ascertained and also denied the suggestion that he or his mother had
asked the respondent to abort the child. Interestingly, during his
further cross-examination, PW-1 clarified that during the period from
January, 2003 to December, 2003 his family and the respondent lived
together with a common kitchen and the respondent fulfilled all her
marital obligations and they had no complaints against each other. He
further stated that the salary of the appellant was kept in the almirah of
the respondent and could be used by her as required and he never
questioned the expenses. He stated that in April 2005, father of the
respondent threatened to ruin his life. He further testified that
respondent finally left at 06:00 P.M. on 6.3.2007 without anyone’s
knowledge or permission. He deposed that between January, 2003 to
January, 2005 respondent continuously visited her parental home but
did not remember the details of such visits. In cross-examination,
PW-1 stated that from June, 2006 onwards the respondent remained
with him for about 18 months and behaved normally and her
misbehavior started only after her mother and sister-in-law visited the
matrimonial home. He denied the suggestion that he was informed of
the marriage of the respondent’s sister or that her brother had come to

MAT. APP (F.C.) 97/2017 Page 7 of 18
invite him. He learnt about the respondent leaving the matrimonial
home on 6.3.2007 with her brother and three other persons, from one
Shri Shyam Prasad. He denied the suggestion that he did not make
any effort to bring the respondent back. He clarified that on 2.1.2011
he had gone to bring the respondent back for his brother’s marriage.
He denied that the guardianship petition was filed only to harass the
respondent.

14. PW-2 neighbour of the appellant testified in respect of respondent
leaving the matrimonial home on 6.3.2007 with her brother. On cross-
examination he clarified that he was illiterate and that his house was
opposite to that of the appellant. He denied the suggestion that mother
of appellant was at home when the respondent left with her brother on
6.3.2007.

15. Respondent in her examination-in-chief testified on the lines of the
written statement. On cross examination, she denied having given her
daughter in adoption to her brother-in-law. She deposed that she was
residing at Gurgaon for the past one or two years in a separate rented
room in the same premises where her brother in law was residing. She
further deposed that she had got the ration card corrected. She had
undertaken to get her daughter admitted at Tri Nagar instead of
Gurgaon but she could not secure admission. She denied that during
the proceedings of petition under Section 9 of HMA, the appellant was
willing to take her back without any conditions. She deposed that she
had filed a maintenance petition in Sonepat but this was not to harass
the appellant. She deposed that it was on her complaint dated
3.8.2015 to the Gurgaon police that the appellant was arrested under

MAT. APP (F.C.) 97/2017 Page 8 of 18
Sections 107/Section151 Cr.PC. Respondent testified that she stayed at her
parental home from 6.3.2007 to 19.3.2007 due to her younger sister’s
marriage but returned to the matrimonial home on 19.3.2007 but was
turned out of the house on the same day. She testified that her visits to
parental home were mostly during her pregnancy and she mostly
visited the hospital where her father was employed. It was denied that
repeated petitions were filed by her to harass the appellant or that she
did not return to matrimonial home despite the efforts of the appellant
and the village folks. All suggestions of the appellant that false
allegations of dowry demands were made, were denied by the
respondent.

16. The family court found that the appellant had not been able to prove
that the allegations levelled by him amounted to cruelty and in any
case most of the allegations remained unsubstantiated. As regards the
grounds of desertion, the family court found that the appellant had not
been able to substantiate that the respondent had deserted him for a
period of two years preceding the date of filing the petition and
observed that in fact it was the appellant who had prevented the
respondent from returning back to the matrimonial home by imposing
conditions which could not fulfilled. The petition was accordingly
dismissed finding that the appellant was not entitled to a decree of
divorce.

17. Learned counsel for the appellant submits that the family court has
erred in drawing an inference against him that he had not been able to
prove deposit of half of his salary in the account of the respondent and
only because she had access to money did not mean that he was not

MAT. APP (F.C.) 97/2017 Page 9 of 18
compelled to deposit separately 50%, in her account. He contended
that the family court has ignored that the appellant was not even
invited on the occasion of the marriage of the respondent’s younger
sister, although he had testified to this effect and there was no cross-
examination on this aspect. It was argued that the trial court has even
failed to consider the testimony of PW-2 who had clearly deposed that
the respondent had left her matrimonial home on 6.3.2007 when there
was no body at home and this was without any intimation to him.
Even the allegation of demand of Rs.5,00,000/- by the appellant from
the respondent has been believed by the family court wrongly though
the respondent could not substantiate the same and making false
allegations is cruelty. It was further argued that the respondent
hounded the appellant in different courts and made false claims. He
was even arrested by the Gurgaon police under Sections 107/Section151
Cr.P.C. and this by itself was ‘cruelty’ to entitle him to a decree of
divorce. It was vehemently argued that the respondent went to the
extent of applying for a ration card and in the application form she had
mentioned the name of one Prashant Sharma against the column
‘name of the father’. The said application form was also attested by a
superior officer of the father of the respondent and this was a fact
admitted by her during her cross-examination. It was further
submitted that after March, 2007 the appellant had made various
efforts to reconcile but the family court has erred in not taking into
account those attempts and has rather held the appellant responsible
for the respondent not joining the matrimonial home.

MAT. APP (F.C.) 97/2017 Page 10 of 18

18. Per contra, counsel for the respondent defended the judgment of the
family court and submitted that the petition had been rightly dismissed
against the appellant. It was submitted that she had not given her
daughter in adoption to anyone. Prashant Sharma was her brother-in-
law and the error in the name shown against the column of ‘name of
the father’ was an inadvertent mistake. The respondent had infact got
the ration card corrected. The respondent, it was argued, could not get
her daughter admitted at Tri Nagar and was thus admitted to a school
in Gurgaon, where she was living. It was argued that during the
proceedings under Section 9 of the Hindu Marriage Act filed by the
appellant before the Rohtak Court, the respondent was willing to go
back, but the appellant had imposed several conditions, which made it
impossible for her to go back. Filing of the maintenance petition at
Sonipat was sought to be justified by the learned counsel for the
respondent on the ground that she had to fend for her daughter, who
was admitted in a preparatory school at Sonipat. The counsel also
justified the lodging of the complaint under Section 107/Section151 Cr.P.C.
on the ground that the harassment by the appellant had led her to
follow this path. It was further argued that the respondent left for her
parental home only for a short period in March, 2007 and this was on
the occasion of her younger sister’s marriage, but soon thereafter
returned back to her matrimonial home. She was however turned out
of the matrimonial home and did not leave the same on her own
accord. It was also submitted that no criminal proceedings were
initiated at the initial stage, as the respondent always looked for a
reconciliation.

MAT. APP (F.C.) 97/2017 Page 11 of 18

19. We have heard learned counsels for the parties and examined their
contentions as well as the pleadings and the evidence.

20. The family court has disbelieved the allegation of the appellant that
the respondent along with her parents repeatedly demanded that the
appellant should deposit 50% of the salary in the account of the
respondent. In our view, the family court has rightly held that the
respondent on her own returned back to the matrimonial home on
6.6.2006 and the appellant was unable to prove any deposit having
been made by him thereafter, in her account. Considering the
background and the culture of the parties, such a pre-condition even
seemed improbable. We also agree with the reasoning that the parties
lived together happily till March, 2007 but this issue never cropped up
and also that no independent person from the Panchayat, if any, was
examined to support such a demand by the respondent or her parents.
The allegation of the respondent, however, that the appellant
demanded Rs.5,00,000/- from the respondent for the employment of
his brother has been disbelieved by the family court in the absence of
any cogent proof of the payment of the said sum and in our view
rightly so.

21. The family court has not agreed with the appellant that the respondent
left for her parental home on account of a discord between the parties
and that she had left without any permission from the appellant or his
family members. It is customary for a sister to visit her parental home
on the marriage of her sister and it is not unusual that the brother of
the respondent would have visited her and taken her for the wedding.
The family court is justified in observing that this act does not amount

MAT. APP (F.C.) 97/2017 Page 12 of 18
to ‘cruelty’. As against the testimony of PW-2 in this regard, the
family court has gone by the testimony of the respondent, that she had
left the premises on 6.3.2007, after taking permission and in fact the
appellant and his brother had accompanied them upto Punjabi Bagh to
see them off as the same could not be impeached during cross-
examination. What has also weighed with the family court on this
issue was the fact that the appellant was working in the Delhi Police
and if the respondent had left with all the jewellery and other articles,
without his permission, he would have surely known what steps to
take and would have taken recourse to law. The family court has
believed the testimony of the respondent that after the marriage of her
sister on 12.3.2007 she joined the matrimonial home on 14.3.2007, but
was turned out on 19.3.2007 in three apparels.

22. We also find justification in the finding of the family court that from
March, 2007 the respondent was staying at her parental home, but the
efforts made by the appellant for reconciliation were only a
camouflage. Even in the petition under Section 9 of the Hindu
Marriage Act filed by him at Rohtak, he laid several conditions for the
respondent to come back. The family court was also not convinced
that the absence of the respondent, before the Counseling Centre at
Rohtak was intentional as there was nothing on record to show that the
notices were served upon the respondent. The family court has also
rightly observed that any conduct of the respondent prior to 6.3.2007
in any case stood condoned as the appellant had himself admitted that
the parties lived happily till 6.3.2007, despite a few separations in
between.

MAT. APP (F.C.) 97/2017 Page 13 of 18

23. The appellant had made a very serious allegation against the
respondent that she had shifted to the residence of her sister at
Gurgaon only to deprive him of the visitation rights and even in the
school records the name of the brother-in-law was shown as the
father’s name. The family court however believed the testimony of
the respondent that she had sent the minor daughter to the house of her
sister for the purpose of studies only and to protect the child from the
repeated threats of the appellant on account of the strained relations
between the party. The family court also found that the error of the
father’s name was not such an issue which could lead to an inference
of cruelty. In our view the family court has rightly disagreed with this
contention of the appellant, as it is not uncommon that when spouses
have strained relationship, the wife often takes refuge and shelter
under her parental family members. Shifting their daughter to her
sister’s house was only an act to make her more comfortable and to
remove her from the hostile environment of her own place of
residence.

24. As regards the contention of the appellant that the respondent had
levelled false allegations in her written statement qua the demand of
Rs.5,00,000/- and this was cruelty, the family court noticed the stand
of the respondent that she had not initiated any proceedings under
Sections 498A/Section406 IPC and merely putting up a defence would not
amount to cruelty. We find no flaw in this reasoning of the family
court as well.

25. It was lastly contended that the respondent had not joined the
matrimonial home despite the appellant having filed a petition under

MAT. APP (F.C.) 97/2017 Page 14 of 18
Section 9 of the Hindu Marriage Act. The family court has not agreed
with the appellant on this count also. It is noticed that the joining
back of the respondent had been made conditional by the appellant
and thus there was no seriousness on his part to repair the matrimonial
bond. The family court had also in the earlier part of the judgment
returned a finding that the respondent had been thrown out of the
matrimonial home in three apparels and thus the conclusion by the
court that there was no desertion on the part of the respondent is
plausible and justified.

26. The concept of cruelty has been now amply crystallized and
summarized in various judgments reported as V. Bhagat Vs. D.
Bhagat, II (1993) DMC 568 (SC), A. Jauachandra Vs Aneel Kaur
(2005) 2 SCC 22, Naveen Kohli Vs. Neelu Kohli, AIR 2006 SC 1675
and Vinita Saxena Vs. Pankaj Pandit, (2006) 3 SCC 778. In fact in
the case of Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511 the
Hon’ble Apex Court had laid down broad parameters to define the
concept of matrimonial cruelty and which we find apt to notice. The
sum and substance of these parameters is that no uniform standard can
be laid down to define or assess cruelty. We quote hereinunder the
broad parameters for ready reference:

“101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some
instances of human behaviour which may be relevant in
dealing with the cases of “mental cruelty”. The instances
indicated in the succeeding paragraphs are only illustrative
and not exhaustive:

(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not

MAT. APP (F.C.) 97/2017 Page 15 of 18
make possible for the parties to live with each other could
come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly clear
that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and
continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it
makes the married life for the other spouse absolutely
intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused
by the conduct of other for a long time may lead to mental
cruelty.

(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one
spouse actually affecting physical and mental health of the
other spouse. The treatment complained of and the resultant
danger or apprehension must be very grave, substantial and
weighty.

(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or
deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and
tear of the married life which happens in day-to-day life
would not be adequate for grant of divorce on the ground of
mental cruelty.

(x) The married life should be reviewed as a whole and a
few isolated instances over a period of years will not amount

MAT. APP (F.C.) 97/2017 Page 16 of 18
to cruelty. The ill conduct must be persistent for a fairly
lengthy period, where the relationship has deteriorated to an
extent that because of the acts and behaviour of a spouse,
the wronged party finds it extremely difficult to live with the
other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of
sterilisation without medical reasons and without the
consent or knowledge of his wife and similarly, if the wife
undergoes vasectomy or abortion without medical reason or
without the consent or knowledge of her husband, such an
act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical
incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to
cruelty.

(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction
though supported by a legal tie. By refusing to sever that tie,
the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties. In such like situations,
it may lead to mental cruelty.”

27. Applying these broad parameters to the present case and looking at the
evidence led by the parties and examining the analysis and the
reasoning of the family court we find that the appellant has not been
able to substantiate any of the allegations levelled by him. The family
court has given credence to the version of the responded on the basis
of her testimony and dismissed the divorce petition against the
appellant.

MAT. APP (F.C.) 97/2017 Page 17 of 18

28. We find no infirmity in the judgment of the learned family court.

There is no merit in the appeal and the same is hereby dismissed with
no orders as to costs.

JYOTI SINGH, J.

G.S. SISTANI, J.

MAY 3rd , 2019
Ssc/rd/AK

MAT. APP (F.C.) 97/2017 Page 18 of 18

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