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Inder Singh vs Savitri Devi on 1 May, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT. APP. (F.C.) 72/2020 and C.M. APPL. Nos. 8489-90/2020

Date of decision: 01.05.2020
IN THE MATTER OF:

INDER SINGH ….. Appellant
Through: Mr. Kamal Mehta, Advocate.

versus

SAVITRI DEVI ….. Respondent
Through: None.

CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MS. JUSTICE ASHA MENON

HIMA KOHLI, J.

1. The appellant/husband has challenged the judgment dated 22.10.2019
passed by the Additional Principal Judge, Family Court, West District, Tis
Hazari Courts, dismissing a petition filed by him for seeking divorce from
the respondent/wife under Section 13(1) (ia) and (ib) of the Hindu Marriage
Act, 1955 (in short ‘HMA’) on the ground that he has failed to prove that
the respondent/wife had treated him with cruelty or that she had deserted
him.

2. The factual matrix of the case is as follows. The marriage of the
appellant/husband and the respondent/wife was solemnised on 4.5.1980, as
per Hindu rites and customs. Though the appellant/husband disputes their
paternity, there are two children born from the marriage, a son, Parveen
Kumar was born on 21.10.1983 at Pataudi, Haryana which is the parental

MAT. APP. (F.C.) 72/2020 Page 1 of 11
home of the respondent/wife and a daughter, Indu Priya was born on
9.6.1985 at Nangloi, Delhi which is the matrimonial home of the
respondent/wife. Both of them were residing with the respondent/wife since
birth and are married. After about 35 years of their marriage, the
appellant/husband filed a divorce petition on 27.2.2015.

3. As per the factual narration in the divorce petition, both, the
appellant/husband and the respondent/wife were school teachers employed
with the Government of Haryana. They were posted as teachers at different
places, during the course of their service. The appellant/husband retired
from service in March, 2012. It is his version that right from the date of the
marriage, the respondent/wife used to taunt him claiming that the status of
her family was much higher than his status; that she was in the habit of
picking up quarrels with the appellant/husband and also abused him; that she
never prepared food for him; that she created scenes in front of his relatives
and humiliated him and his family members; that she was in the habit of
staying at the matrimonial home just for a few days and thereafter she would
go to her parental home and remain there for periods spanning over six
months; that she was in the habit of avoiding social and family functions of
the appellant/husband and lastly, that she did not permit him to establish a
physical relationship with her thereby causing him mental torture.

4. The appellant/husband has alleged that ever since the year 1985, the
respondent/wife had left the matrimonial home and his company and had
started residing at Pataudi, Gurgaon, Haryana with her father and refused to
return despite several requests made by him. Matter was sought to be
resolved through relatives and other well wishers of the parties who had
approached the respondent/wife, but she refused to return to her matrimonial

MAT. APP. (F.C.) 72/2020 Page 2 of 11
home. The appellant/husband has alleged that he has no concern with the
children of the respondent/wife and ever since the year 1985, he has had no
relationship with the respondent/wife as they have been living separately.

5. It appears that what instigated the appellant/husband to file the
divorce petition was an incident that took place in March, 2014, when he
claims that in his absence, the respondent/wife had entered his house
alongwith the children without his prior permission, by taking the keys from
his neighbour and despite his repeated requests, she refused to vacate the
house and instead, threatened him and warned that she would implicate him
in false and fabricated cases.

6. Notice of the petition was served on the respondent/wife, who filed
her written statement in opposition and denied all the averments made by the
appellant/husband in the petition. The respondent/wife denied that she ever
taunted the appellant/husband or refused to do the household works. Instead,
she stated that the appellant/husband is a habitual drinker and after
consuming liquor, on the instigation of his brother, used to physically assault
her on several occasions. He not only harassed the respondent/wife, but also
locked her and the children in a room in the matrimonial home and most of
the time, he was living at his brother’s house and it was at the instance of his
brother and bhabhi that she used to be harassed and tortured by the
appellant/husband.

7. The respondent/wife further denied that there was any separation
between the parties since the year 1985. She stated that she and the children
are living in the matrimonial home, which is an ancestral property and in an
attempt to dispossess them, the appellant/husband has executed a GPA in
respect of the property in favour of his brother, so as to show that the same

MAT. APP. (F.C.) 72/2020 Page 3 of 11
is owned and purchased by him. The respondent/wife further stated that the
appellant/husband has filed a civil suit against the children, calling upon
them to handover physical possession of the house and has demanded
damages and occupation charges. The respondent/wife submitted that she
had filed a petition against the appellant/husband under the Domestic
Violence Act and a civil suit claiming inter alia that he has fabricated the
documents in respect of the ancestral property where the parties are residing.

8. On completion of the pleadings, the Family Court framed the
following issues:-

“(1) Whether petitioner is entitled to decree of
divorce on the ground of cruelty under Section 13 (1) (ia)
HMA? OPP

(2) Whether petitioner is entitled to decree of divorce on
the ground of desertion under Section 13 (1) (ib) of
HMA? OPP

(3) Whether petitioner is not entitled to relief prayed on
account of preliminary objections taken in her WS? OPR

(4) Relief.”

9. To prove his case, the appellant/husband examined himself as PW1
and tendered his affidavit by way of evidence, marked as Ex.PW1/A.
Similarly, the respondent/wife examined herself as RW1 and tendered her
affidavit by way of evidence, marked as Ex.RW1/A. After going through
the evidence, the Family Court opined that the appellant/husband had
levelled vague and unsubstantiated allegations of cruelty against the
respondent/wife and he had failed to mention any date or specific instance
relating to the cruelty allegedly suffered by him at the hands of the

MAT. APP. (F.C.) 72/2020 Page 4 of 11
respondent/wife. Rather, the Family Court observed that questioning the
paternity of his two children without proving that he was not their biological
father, itself would amount to cruelty qua the respondent/wife. Thus, holding
that the appellant/husband was unable to prove that he is entitled to divorce
on the grounds of cruelty, issue No.1 was decided in favour of the
respondent/wife.

10. As for issue No.2, as to whether the appellant/husband was entitled to
a decree of divorce on the ground of desertion, the Family Court outright
disbelieved the allegations levelled by him that the respondent/wife was
afraid of establishing a physical relationship with him or that she had
forcibly gained entry into the matrimonial home in the year 2014. Noting
the fact that the appellant/husband had admitted that the marriage of both the
children had taken place from the matrimonial home in the years 2011 and
2015, the Family Court refused to believe his version that it was at the
request of the respondent/wife that he had permitted her to conduct the
marriages from his residence. It was observed that if the respondent/wife
had really deserted him and there was no relationship between the parties
since the year 1985, then there was no reason for the appellant/husband to
have waited for so long and file a divorce petition in the year 2015, after the
passage of 30 years and even then, he had failed to establish desertion on the
part of the respondent/wife for a continuous of period of two years
preceding the presentation of the petition, as required under the statute.
With these observations, the second issue was also decided in favour of the
respondent/wife and the divorce petition filed by the appellant/husband was
dismissed. Aggrieved thereby, the present appeal has been filed.

11. Mr. Kamal Mehta, learned counsel for the appellant/husband assails

MAT. APP. (F.C.) 72/2020 Page 5 of 11
the impugned judgment on the ground that the Family Court has failed to
appreciate the evidence led by the parties in the correct perspective and has
wrongly arrived at the conclusion that the appellant/husband was unable to
demonstrate that the respondent/wife had treated him with cruelty; that the
respondent/wife had herself admitted at several places in the written
statement that there was a separation between the parties since the year
1985, which fact has been overlooked by the Family Court while rejecting
the plea of desertion; that during her cross-examination, the respondent/wife
had herself stated that she and the appellant/husband were residing
separately and since the year 2014 and she had no concern with him. He
contended that the said statement itself was sufficient for the Family Court
to have allowed the divorce petition filed by the appellant/husband on the
ground of desertion.

12. We have given our thoughtful consideration to the arguments
advanced by learned counsel for the appellant/husband, perused the
impugned judgment and examined the trial court record that had been
summoned.

13. It is well established through a catena of decisions that the word
‘cruelty’ may not have been defined in the HMA, but it encompasses
conduct of such a nature, both mental or physical, intentional or
unintentional, that would cause a reasonable apprehension in the mind of the
aggrieved spouse that it would be harmful or injurious to live with the other
spouse. For deciding as to whether the aggrieved spouse has suffered
cruelty at the hands of the other spouse, the court must examine the social
and economic background of the parties, their life style, their cultural
moorings and the moral values imbibed by them. The yardstick for testing as

MAT. APP. (F.C.) 72/2020 Page 6 of 11
to whether the aggrieved spouse has been caused danger to her/his life or
health, would have to be taken as more than a reasonable apprehension that
it would be harmful and injurious for her/him to live with the other spouse.
The fact situation of each case being naturally different, there can be no
standard formulae that can be applied to a given set of facts. Each case must
be examined on its merits as the nuances of a relationship between a
husband and wife can never be identical and much would depend on their
inter-se relationship, their behaviour with each other and their family
members over the years, for any court to conclude as to whether the effect of
such a conduct, whether physical or mental, would be such as to cause a
genuine apprehension in the mind of the aggrieved spouse that it would be
harmful and injurious for her/him to live with the other spouse (Refer: Dr.
N.G. Dastane Vs. Mrs. S. Dastane reported as AIR 1975 SC 1534, Shobha
Rani Vs. Madhukar Reddi reported as (1988) 1 SCC 105, V. Bhagat Vs. D.
Bhagat reported as (1994) 1 SCC 337 and Swati Vs. Arvind Mudgal
reported as 2015 (2) LRC 301 (Delhi)]

14. Reverting back to the instant case, it is an admitted position that the
marriage of the parties was solemnised on 4.5.1980 and the matrimonial
home of the parties was at Nangloi, Delhi. The appellant/husband has
challenged the paternity of the two children, who the respondent/wife has
asserted, were born from out of the marriage of the parties. The records
reveal that the appellant/husband did not lead any evidence to establish that
the children were not born from out of the wedlock. In his cross-
examination, the appellant/husband admitted to the fact that he had never
applied for getting the DNA of both the children tested, so as to verify their
paternity; that though in the school records of the children, he was named as

MAT. APP. (F.C.) 72/2020 Page 7 of 11
the father and similarly, in the Aadhar Card of the son, Parveen Kumar, his
name has been recorded in the column of father, he had not taken any step to
challenge the said documents. Instead, he pleaded that the said documents
were prepared after he had retired from government service in the year 2014,
which was rightly discounted by the Family Court that observed that it was
not possible that the school documents of the children were prepared
subsequently. Having regard to the fact that both the appellant/husband and
the respondent/wife were employed as school teachers with Haryana
Government and in the course of their career they were posted at different
places, we are of the opinion that the learned Family Court was correct in
arriving at the conclusion that while the appellant/husband was residing at
Nangloi, Delhi, due to her professional commitment, the respondent/wife
was residing at Pataudi, Haryana. The appellant/husband has admitted in his
cross-examination that sometimes, the respondent/wife used to come to the
matrimonial home on weekends and on Saturdays, which itself demonstrates
that the parties were cohabiting and continuing their matrimonial
relationship. It is not even the case of the appellant/husband that he had
objected to the respondent/wife visiting the matrimonial home at Nangloi,
from time to time. In such circumstances, the inevitable inference is that by
his conduct the appellant/husband had condoned any act of cruelty on the
part of the respondent/wife, including his claim that she had refused to
establish a physical relationship with him.

15. Another material fact that goes against the appellant/husband is that in
one breath, he has questioned the paternity of the children and in the other,
he admits to the fact that the marriage of both the children had taken place
from his home at Nangloi, in the year 2011 and 2015, respectively. It is

MAT. APP. (F.C.) 72/2020 Page 8 of 11
hard to believe that though the children were not born from out of the
wedlock, as claimed by him, the appellant/husband was so generous that he
acceded to the request of the respondent/wife and permitted their marriage
ceremonies to be performed from his home. The appellant/husband also
failed to place on record any documentary evidence to demonstrate that at
any point in time, he had objected to the respondent/wife using his name as
the father of the children or that he had approached the court of law or any
other forum, questioning the paternity of the children. It is also not in
dispute that the son, Parveen Kumar was born at Patuaudi, Haryana, which
was his maternal grandparents’ residence and the delivery of the daughter,
Indu Priya had taken place at the matrimonial home at Nangloi, Delhi. This
fact itself demolishes the plea taken by the appellant/husband that he never
had any access to the respondent/wife or that the parties had been living
separately throughout.

16. In the above circumstances, the claim of the appellant/husband that
the parties had no relationship after the year 1985 or that the
respondent/wife had deserted him for the past 30 years, is untenable and has
been rightly rejected by the learned Family Court. The allegation of the
appellant/husband that the respondent/wife had forcefully gained entry into
his Nangloi house in the year 2014, when he had gone to Sonepat, by taking
the keys from a neighbour, also appears to be meritless when admittedly, he
did not lodge any complaint with any authority or the police station alleging
that a forceful entry had been made by the respondent/wife and the children,
nor did he lead any evidence by summoning his neighbours or family
members, who could have deposed on the above incident. The self-serving
statements made by the appellant/husband cannot be accepted as the final

MAT. APP. (F.C.) 72/2020 Page 9 of 11
word.

17. We are therefore in complete agreement with the opinion expressed
by the learned Family Court that the appellant/husband has miserably failed
to prove that the respondent/wife had treated him with cruelty for claiming
dissolution of the marriage on the ground of cruelty.

18. As regards the second plea that the respondent/wife had deserted the
appellant/husband and ever since the year 1985, she was residing with her
father at Pataudi, Haryana, as noted above, both the husband and wife were
working as school teachers in government schools run by the Haryana
Government and the nature of their service was such that they could be
posted at different places. Thus, the respondent/wife had to live away from
the matrimonial home when posted out but she used to come over to her
matrimonial home at Nangloi during weekends. This position has been
admitted by the appellant/husband. For claiming desertion, the
appellant/husband was required to prove that the respondent/wife had
deserted him for a period of not less than two years immediately preceding
the presentation of the divorce petition. However, it is the
appellant/husband’s own version that the respondent/wife had gained entry
into the matrimonial home at Nangloi, in the year 2014. The
appellant/husband has stated in his cross-examination that the
respondent/wife is living in one room on the ground floor and he is living in
the adjacent room, whereas the son, Parveen Kumar is residing with his wife
and children on the first floor of the Nangloi house. If the statement made
by the appellant/husband that the respondent/wife had forcibly gained entry
into the matrimonial home in March, 2014 is correct and it is also true that
ever since then, she is continuing to reside there, then this itself is sufficient

MAT. APP. (F.C.) 72/2020 Page 10 of 11
ground to non-suit him on the second issue of desertion keeping in mind the
fact that the petition for divorce was filed by him on 27.2.2015, which was
within a period of 11 months, reckoned from March, 2014. Thus, the
ground of desertion was not even available in law to the appellant/husband.

19. In view of the aforesaid discussion, we have no hesitation in
upholding the impugned judgment. The present appeal is accordingly
dismissed as meritless alongwith the pending applications, with no order as
to costs.

(HIMA KOHLI)
JUDGE

(ASHA MENON)
JUDGE
MAY 01, 2020
NA

MAT. APP. (F.C.) 72/2020 Page 11 of 11

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