IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 16 of 2015
Hemlata W/o Sri Khadak Singh Mehra ……Appellant
Versus
Khadak Singh Mehra …… Respondent.
Present:
Ms. Menka Tripathi, Advocate for the appellant.
Mr. L.K. Tripathi, Advocate for the respondent.
Reserved Judgment
JUDGMENT
Coram: Hon’ble Rajiv Sharma, J.
Hon’ble Sharad Kumar Sharma, J.
Dated: 14th September, 2017
Per Hon’ble Sharad Kumar Sharma, J.
On being aggrieved by grant of a decree of divorce,
granted in favour of the husband by the Family Court,
Udham Singh Nagar, vide its judgment dated 25th
November, 2014, the appellant wife has challenged the
judgment on various grounds, primarily, the grounds which
are enumerated hereunder :-
The wife has taken a ground in the instant appeal that
the allegations levelled by the husband before the Court
below, while seeking the decree of divorce, the learned Court
below has committed an error by holding that the behavior
of the appellant towards the respondent to be cruel, despite
of the fact that the Court below has observed that the
respondent plaintiff had failed to prove a fact of cruelty. It
2
was also pleaded in the ground of appeal that the fact of
illicit relationship of the appellant was also not proved by
the husband and, more particularly, when the husband in
the suit, seeking dissolution of marriage on the ground of
adultery has not impleaded the adulterer as a party, because
under the rules framed by the High Court, when either of
spouse comes forward with the case of illicit relationship or
adultery, it is necessary for the plaintiff to make the adulterer
as a party so that the allegation may be proved, after
considering the version of the adulterer.
In the absence of the respondent, impleading the
adulterer as a party, the decree of divorce could not have
been granted to the husband on the ground of illicit
relationship.
Another important aspect which has been taken as a
ground by the wife, while challenging the decree of divorce
is, that some of the allegations about the cruelty said to have
been committed by appellant wife, has been raised by the
husband in the plaint for the first time and no sanctity could
be attached to the same because the allegation of adultery or
illicit relationship, cannot be an incident which has chanced
overnight. It must have been subsisting for a long time and,
in such a circumstances, invariably in some of the
communications, it ought to have figured at the behest of the
husband or reflected somewhere, since this not being so, and
the allegation which has come up in the plaint for the first
time, much credence ought not to have been placed by the
Family Court while dissolving the marriage by decree
impugned. It is also case of appellant that Court below lost
sight of the fact that in the cross examination as led by the
respondent husband, he has admitted in it that he has not
3
filed any case under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights, meaning thereby, as a matter of
fact, no effort has been made by him to revive the marriage
and thus, the cruelty was rather at the behest of the husband.
Another reason which has been assigned by the Court
while granting the decree of divorce was based upon the
personal observations made by the Court, wherein, the
Court observed that the appellant wife, since while
appearing in the Court had not put on ‘bindi’ on the
forehead and there is no ‘mangalsutra’ in her neck and thus,
the inference drawn by the Court was that there has been a
severment of relationship at the behest of the wife, since she
had not followed traditions of Hindu wife by putting symbol
of marriage.
The appellant wife, in her memorandum of appeal, has
taken a specific ground that the learned Court below had
erred in law while deciding the issue No. 1, based upon the
opinion and inferences as it related to affinity of the wife
with her previous classmate Surya Giri. The contention of
the wife was that the findings, which has been recorded by
the Family Court, while granting the decree of divorce from
the view point that the said decree would be having an
adverse effect on the proceedings under Section 498-A I.P.C.,
is absolutely misconceived for the reason as per wife merely
because a proceedings may be on either a civil or criminal
side will have no impact on other parallel proceedings, its
adjudication would be on its exclusive merit, cannot be
avoided as each case has its own vitalities. On these grounds,
primarily, the present appeal has been filed by the appellant
seeking quashing of the impugned judgment dated 25th
November, 2014, passed by the Family Court, dissolving the
4
marriage on the petition filed by the respondent husband
under Section 13 (1) (i-a) (i-b).
Facts as enumerated before the Court below by the
husband plaintiff was that the marriage between the parties
to the appeal was soleminised on 04.05.2002 at Mumbai, i.e.
where they were residing at that particular point of time on
4th May, 2002, because the husband was stationed at Bombay
because he was engaged in BARC. In the same place, where
the husband was working, wife’s childhood friend Surya
Giri, was also working and gradually when the wife came to
know that her classmate is working in the same office, she
gradually started developing affinity to Surya Giri, who
often now and then used to visit the home in the absence of
the husband. Thus, a bona fide doubt was created in the
minds of the husband when due to the said closeness, she
refused to have physical relationship with the plaintiff
respondent as alleged by husband and she suggested that in
case, if he wants to satisfy his physical desire, he should call
upon the prostitutes, instead of approaching her. As per the
husband’s case, it shows that she has lost her sensitivity
towards the matrimonial relationship with the plaintiff
respondent, as the relationship gradually turned placid
amongst them unaffected by any emotional discord.
According to the husband, he tried to make her
understand that under the Hindu Law, the matrimony has to
be sustained and one has to settle himself in a bundle of
compromise to sustain the family, but, as per husband, the
same was not accepted by the wife and she pressed upon
that under these circumstances, she cannot continue to live
with the husband, hence he alleged commission of cruelty at
the behest of wife.
5
Based on the aforesaid averments raised by the
husband, coupled with the fact that he pleaded before the
Court below that there had been unbearable cruelty by
conduct, yet, out of the marriage, a daughter was born on 4th
March, 2004, named Garima, who, since being of 9 years was
of a too tender stage was is in the custody of the wife. To get
the custody of the daughter from wife, the husband initiated
the proceedings under the Guardianships and Wards Act
being Case No. 033 of 2011, Kharag Singh Mehra Vs. Hem
Lata, which is pending consideration before the Court below.
Husband’s case was when she started harassment in league
with her friend rather because of him, Surya Giri, the
husband was forced upon to quit his job on 18th February,
2007. The husband also developed the case before the Court
below of desertion, stating therein, that the wife has deserted
the husband and her matrimonial home and has moved with
her parents after taking her daughter Garima and all
valuable, it was also submitted that at the time when she was
leaving home of the husband, she had carried all her
stridhan, ornaments and valuable and departed to Kashipur.
Husband made an effort to bring back his wife by visiting
her home on 29th April, 2007, but she refused to accompany
the husband, meaning thereby, she declined to discharge her
matrimonial obligations.
Hence, the husband contends that looking to the
behavior of the wife, it gave necessity to file the proceedings
under Section 13, when the wife consistently deserted her
husband for the period of more than four years and hence in
the absence of there being any cohabitation and the marriage
since remained unconsummated for last more than 4 years,
he was entitled for the decree of divorce.
6
On issuance of the notice, the wife appeared before the
Court and filed her written statement, paper No. 14-ka and
she admitted two facts only one that the marriage between
them was solemnized on 4th May, 2002, and, secondly, she
accepted the fact with regard to the child being born, out of
the wedlock. She admits the fact that when after the
marriage, she accompanied the husband at Mumbai, after a
period of 9 to 10 months of her marriage with the respondent
husband, then she came to know that Surya Giri was
residing in Bombay, who was a childhood friend of the wife.
With regard to the allegation of illicit relationship of wife
appellant, with her classmate Surya Giri, the wife has taken
a specific stand in the written statement that she has got no
relationship whatsoever with Surya Giri and since he had
been a classmate, he is more or less like a brother to him and
the apprehension of illicit relationship, as expressed by the
husband, was without any basis and was concocted.
The wife’s case was that the petition for dissolution of
marriage, submitted by the husband, was with the malicious
intention because he wanted to somehow camouflage his
own misdeed when after 8-9 months of their marriage, the
husband started raising a demand of dowry from the in-
laws, asking them to give a sum of Rs. 10 lacs as dowry.
According to the wife, the amount of Rs.10 lacs, as
demanded by the husband, is considerably a heavy amount,
which could not be honoured by the wife’s family due to
paucity of funds, which was not acceptable by the husband’s
family and, thus, they on 2nd November, 2011, had beaten
her and she was thrown out of the house.
The case of the respondent in the written statement
was that when on 13th May, 2007, she went to the husband’s
7
home to collect the dress material of her daughter, who was
residing with her w.e.f. 12th November, 2005, she was not
permitted by the husband to enter into the house and
threaten to kill her. The wife contends that when the things
reached out of control, she was constrained to lodge a police
complaint against the husband and the family members,
under Section 498-A I.P.C. and ¾ of D.P. Act, which is
pending before the Additional Chief Judicial Magistrate,
Kashipur.
As per the wife, the sole reason for all these disputes
and misunderstandings is that the husband and his family
member have developed a lust for dowry and when the
same was not honoured, it was not welcomed by the family
members of the husband and they alongwith husband
started harassing the wife. The wife’s case was further that
she is an educated lady, having qualification of B.Sc. and
B.Ed. and the whole conspiracy which has been developed
by the husband was to somehow secure the decree of divorce
so as to enable him to enter into a second marriage.
Based on the aforesaid grounds, a decree for
dissolution of marriage was sought for.
In the Suit, in question, the wife has filed application
under Section 24 for a grant of pendente lite maintenance
which remained pending for a considerable long time.
The learned Trial Court, on exchange of pleadings,
have framed the following issues :-
“1. D;k izfrokfnuh }kjk oknh eqdnek ds lkFk fookg ds mijkUr
ls dqzjrkiw.kZ O;ogkj fd;k tkrk jgk gS
2. D;k oknh eqdnek }kjk izfrokfnuh dks ngst dh uktk;t ekax
ds fy, “kkjhfjd ,oa ekufld ;kruk,a nsrs gq, mls ?kj ls fudky fn;k gS
8
3. D;k izfrokfnuh }kjk nkok is”k djus dh frfFk ls iwoZ fujUrj
djhc lks pkj o’kksZ ls vf/kd le; ls oknh eqdnek dk ifjR;kx fd;k gS
vkSj mls nkEiR; thou ds lq[kksa ls oafpr j[kk gS
4. oknh fdl vuqrks’k izkIr djus dk vf/kdkjh gS “
The first issue related was as to as to whether
defendant wife has committed a cruelty resulting into
impeaching the matrimonial harmony, as to whether, under
the pretext of dowry demand, she has been physically and
mentally duressed by the family members of the husband
and husband himself and lastly, an issue was framed as to
whether the defendant appellant had deserted her husband
for last more than 4-1/2 years.
The plaintiff in support of his evidence has appeared in
the witness box and submitted his affidavit in examination-
in-chief as paper No. 22-Ka and examined himself by
recording his oral testimony as PW1. Besides this, another
witness, Laxman Singh Mehra, who filed his affidavit as
paper No. 26-ka, was a prosecution witness as PW2.
Besides the oral witnesses, the husband has also
produced documentary evidence viz. paper No. 27-Ga,
paper No. 28-Ga and so forth.
The wife, who was contesting the proceedings, too,
had submitted her affidavit in examination-in-chief, which
was numbered as paper No. 44-Ka and recorded the
statement by way of an affidavit paper No. 45-Ka of DW2.
The learned Trial Court, while deciding issue No. 1
pertaining to the cruelty, held that looking to the charges as
levelled by the appellant against the husband, could be
summarized to the following effects :-
“(i) izfrokfnuh ds lw;kZfxjh uked O;fDr tks mldk iwoZ ls
lgikBh Fkk ds lkFk uktk;t laca/k FksA
9
(ii) oknh eqdnek }kjk izfrokfnuh dks jksdus ij izfrokfnuh mls wBs
eqdnesa esa Qalkus dh ?kedh nsrh FkhA
(iii) izfrokfnuh oknh eqdnek ls “kkjhfjd laca/k cukus ls bUdkj
djrh Fkh rFkk mls oS”;kvksa ds ikl tkus dh lykg nsrh FkhA
(iv) izfrokfnuh ds lw;kZfxjh ls uktk;t laca/kksa ds pyrs oknh
eqdnek dks eqEcbZ ls viuh ukSdjh NksMus ds fy, ck?; gksuk iMkA
(v) izfrokfnuh ds ek;ds pys tkus ij oknh eqdnek ds cqykus ds
fy, tkus ij pIiyksa ls mlds lkFk ekjihV dh tkrh Fkh o mldk fLdkj
fd;k tkrk FkkA
(vi) izfrokfnuh }kjk i{kdkjksa ds lalxZ ls mRiUUk iq+h dks oknh
eqdnek dh iqh ekuus ls bUdkj fd;k tkrk Fkk rFkk izfrokfnuh oknh
eqdnek dks jsy ds uhps dVdj vkRegR;k djus ds fy, mdlkrh FkhA”
The husband’s case, while responding to the aforesaid
allegation / charges, had submitted his own affidavit, paper
No. 22-Ka, and reiterated the statements made in his
pleadings because that was the only situation by which a
cruelty in a matrimonial case could be proved only by way
of evidence because there cannot a direct evidence for the
same.
The Court below, while considering the stand taken by
the appellant pertaining to the allegation of illicit
relationship with a fellow classmate Surya Giri, considered
the fact that it has been consistent stand of the appellant that
Surya Giri, is like a brother of the appellant. She further, in
her statement, in affidavit paper No. 44-Ka stated that after a
considerable long time, she met Surya Giri , when they were
living in Mumbai. Merely levelling the bald allegations
about the illicit relationship of a wife could not be accepted,
as to constitute a basis for dissolving the marriage because
the husband was supposed to prove the fact of illicit
relationship and, according to the evidence on record, no
effort has been made by the husband to show that wife had
10
any entanglement with Surya Giri. But the inference drawn
by the husband that Surya Giri used to visit home, may not
be justified reason to attract Section 13, because in this
modern era, meeting with the friends of opposite sex and
that too particularly in the Metropolitan cities, like Mumbai,
is quite common and no adverse inference could be drawn
until and unless the person claiming a benefit out of it,
proves it beyond doubt, which the husband has failed to
establish.
The allegations levelled by the husband against the
wife that she intended to entrap the husband and his family
members in false criminal cases, very candidly replied by the
wife when she has admitted that though she had filed the
proceedings under Section 125 of the Cr.P.C, Section 12 of
the Domestic Violence Act and Section 498-A read with
Section ¾ of the D.P. Act, merely, to protect her rights as
wife which has been granted under the statute, she had
instituted the proceedings for redressal of her grievance,
cannot be termed as to be a cruelty until and unless a
contrary is proved by the Court of law.
It is an admitted case that the Court has held that the
wife was not entitled for any maintenance under Section 125
of the Cr.P.C. but simultaneously, also held that so far as the
proceedings under Section 12 of the Domestic Violence Act
and Section 406 of the IPC are concerned, if they are not
being established on the basis of pleading and evidence,
adverse inference has to be drawn against wife, and would
be treated to be cruelty.
The view taken by the Court below, on the basis of the
statement made by the wife, during the course of the
proceedings that since 2007, based upon the fact that since
11
2007, she has declined to accept the respondent as her
husband, the Court has further extended the argument of the
wife, by drawing its own inference from the impact of not
putting on ‘bindi’ and ‘mangalshutra’.
Based on the aforesaid observations, the findings
recorded by the Court that the wife was not accepting the
husband as her life partner is not appropriate and plausible
reason requiring to dissolve the marriage which under the
Hindu marriage system has got its own piousness. A very
cursory statement and reason has been assigned by the Court
that if the factum of cruelty is proved by the party claiming
dissolution of marriage, based on cruelty beyond reasonable
doubt, the decree for dissolution of marriage ought to be
granted.
In the case, at hand, it is not the case pleaded by the husband
seeking a decree of divorce based on the ground which constitutes
the reasons in the judgment because, the Court has awarded the
decree of divorce on its own analogy and experience and based
what he personally felt at the time when the proceedings were
going on before the Court. The personal experiences of the Court
with regard to attitude of either of the spouses, while participating
the proceedings, cannot be inferred and to be interpreted as to
amount to a cruelty. Thus, the reason assigned by the Court that
since the appellant is not putting on ‘bindi’ and ‘mangalshutra’
since 2007, she admits the cessation of relationship of husband and
wife, is absolutely erroneous and without any basis.
Another reason which has been assigned by the Family
Court for decreeing the suit of the husband for dissolution of
marriage is the threat extended by the wife to entrap him in
false criminal cases. Such type of an assertion, as
experienced, is quite common and it often occurs when there
happens to be the slightest misunderstanding between the
12
husband and the wife, but then all the most, it was to prove.
If there was a treat perception, then husband ought to have
protect himself by resorting to the process contemplated
under law by lodging appropriate proceedings.
To prove that there was an intention to entrap or rope
the husband in false case, it was the husband who was
required to prove the actions taken by the wife to achieve
that object. This duty was not discharged by the husband,
but, if this is simultaneously read with the pending cases
under the Domestic Violence Act, proceedings under Section
498-A and Section 125 Cr.P.C., merely its filing by the person
who seeks a redressal of a grievance under the statutory
remedy which is available to a party. Its filing will not
amount to cruelty. Having recourse to a judicial remedy is a
constitutional right and on its availment, it cannot be
nomenclature as cruelty.
The second issue which has been dealt by the Court
pertained to the demand of dowry. Demand of dowry was a
reason which was developed at the behest of the pleadings
raised by the defendant wife. There cannot be any direct
evidence, there are always bleak chances to prove the
allegation, in a matrimonial relationship where husband
could be said to have raised a demand of dowry from the
wife or her family members. Such type of demand is always
dependent upon an interpretation of each and every
individual case separately.
The Court, while considering the import of Section 2 of
the D.P. Act, 1961, as to what would constitute to be a dowry
and while considering its literal meaning that it would
constitute to be a valuable goods or property given at the
time of marriage has inferred that since the marriage was
13
solemnized between them on 4th May, 2002, and since they
have being living separately since 2007, and in accordance
with Section 2 of the definition of dowry under the Act, any
demand which is said to have been made, cannot be termed
as to be a demand of dowry. The Court held that according
to Paper No. 49-Ka, which was the list of documents
pertaining to criminal cases, Case No. 11 of 2012, under
Section 12 of the Domestic Violence Act and the decision of
acquittal by judgment dated 14th March, 2014, shows that in
either of the proceedings were not based upon the fact that
there was a demand of dowry by the family of the husband,
thus this contention was not established.
May it be so. Even let us presume that there was no
demand of dowry and in criminal case filed by the wife but
the allegations as pleaded do support the contention of the
wife that the misunderstanding was because of lack of
specifying the demand, in terms,made by the husband.
Hence, the conclusion drawn by the Family Court, while
deciding issue No. 2, based on the pending criminal
proceedings, is not a just method of concluding the issue
pertaining to the demand of dowry as to be the basis for
seeking the dissolution of marriage.
On issue No. 3, pertaining to desertion, it was the
plaintiff’s case that when on 28th February, he had gone to
Delhi for getting the treatment of his father, during this
period, his wife alongwith his daughter Garima, with all
stridhan, had left the matrimonial home and had gone to
Kashipur and, thereafter, despite of every effort being made,
she had not joined the matrimonial home. This in itself is
sufficient ground for granting decree of divorce. It was the
14
case of the husband that she voluntarily left the matrimonial
home and there was no relationship of husband and wife.
To support the theory of desertion, for deciding issue
No. 3, he placed reliance on the affidavit, paper No. 22-Ka,
wherein, an assertion has come forward from respondent
wife that there was no physical relationship. The factum of
living separately from the house, according to the Court
below, was established by the statement made in the cross
examination, where the wife admits to be living separately
from his husband w.e.f. 1st March, 2007. This would amount
to be admission and furthermore, she also admits that since
2007, she has not put on ‘bindi’ and ‘mangalshutra’, as she
does not teat that any more marriage survives between them.
It is admitted case between the parties that the suit was
filed on 31st October, 2011, and it was further admitted by the
wife that she is living separately since 1st March, 2007, and
no relationship was established between them for last more
than 4-1/2 years. It was further observed that ever since the
dispute has arisen between them, all efforts which has been
made by Mahila Helpline and High Court itself by holding
mediation, but they have failed, as it has been observed in
the decision of the Criminal Case No. 195 of 2008, dated 30th
April, 2010, that all efforts for settlement of dispute between
the husband and wife have failed due to the adamant
attitude of the appellant.
This Court also considered the statement recorded by
the wife in the proceedings under Section 12 of the Domestic
Violence Act, where she has submitted that even if at that
point of time, husband makes an effort to take her back, she
will not accompany her husband. Thus, the Court rightly
held that it was the attitude of the wife and not the attitude
15
of the husband which has contributed the acrimony between
them an life became irretrievable. The adamancy of not
acceding to live gracefully and to discharge the
responsibility of a wife, it shows that it was rather wife who
was not willing to discharge her matrimonial obligation, and
thus, the case would be falling to be within the ambit of
willful desertion. Hence Section 13 (1) (i-b) would be
attracted and the marriage between them would be deserved
to be dissolved as husband has been deprived of the solace
of marriage. Thus, looking to the circumstances as
enumerated as under :-
1. Wife has voluntarily deserted the husband w.e.f. 1st
March, 2007, is sufficient for granting the decree of
divorce.
2. The Act of desertion and having no physical
relationship since 2007, is yet an admitted fact, is
another valid ground for dissolving the marriage.
3. In other co-lateral proceedings, there is specific
statement made by the wife that no amount of
persuasion would persuade her to join the
matrimony, shows the adamancy, that there is no
possibility of conciliation, hence, it would not be
conducive to continue maintain the fractured
relationship.
4. It is an admitted case and also apparent from the
findings recoded by the Court that the husband and
wife are Hindu and she ever since 2007, has not
putting on ‘bindi’, ‘sindur’ and ‘mangalshutra’,
which are honourous symbol of the matrimonial
relationship, depict the affinity and closeness of
wife towards her husband, which shows that she
16herself has voluntarily discarded relationship of
husband and wife.
5. All efforts made by the Mahila Helpline, Family
Court and High Court for conciliation has failed,
though, not proved but the fact which no husband
would accept that the wife regularly for no good
and valid reason meets other male person regularly.
6. Since the husband and the family members all have
been acquitted in the proceedings under Section 12
of the Domestic Violence Act, by the judgment
dated 14th March, 2014, it would amount that the
allegations levelled by the wife are false and
frivolous and this, in itself, would constitute to be a
cruelty, as per the dictum of Apex Court.
Owing to the above, it goes without doubt that the
wife is not willing to discharge her matrimonial obligations
and there has been desertion at her behest since 2007, it
cannot be ruled out that filing of the appeal is nothing but a
deliberate effort to harass the husband further by keeping
him engage in litigation without the dispute being resolved.
In that view of the matter, the appeal fails and the
judgment and decree, as passed by the Court below
dissolving the marriage between the appellant and the
respondent, is upheld.
No order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
14.09.2017 14.09.2017
Shiv
