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Kanwal Kishore Girdhar vs Seema Girdhar on 28 February, 2024

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Delhi High Court

Kanwal Kishore Girdhar vs Seema Girdhar on 28 February, 2024

Author: Neena Bansal Krishna

Bench: Suresh Kumar Kait, Neena Bansal Krishna

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19th September, 2023
% Pronounced on: 28th February, 2024

+ MAT. APP. (F.C.) 326/2018

KANWAL KISHORE GIRDHAR ….. Appellant
Through: Mr. Chandan Kumar Mandal, Mr.
G.K. Chauhan and Mr. Rajeev Kumar
Tomar, Advocates along with
appellant in person.
versus

SEEMA GIRDHAR ….. Respondent
Through: Mr. Mukesh Kumar, Advocate along
with respondent in person.
CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

JUDGMENT

NEENA BANSAL KRISHNA, J.

Howsoever abysmal the differences maybe between the spouses, but in
no realm can the act of the aggrieved spouse of igniting animosity and
hostility in the minor child in an attempt to use the child as a weapon to
get even with their spouse, could be justifiable. Such vindictiveness
aimed to erode a father-daughter relationship is not only an act of
extreme cruelty to the father but also gross inhumanity to the child.

1. The appeal under Section 19 of the Family Courts Act, 1984 read with
28
Hindu Marriage Act 1955 has been filed by the petitioner/husband
against the Judgment dated 09.10.2018, vide which his petition under

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Section 13 (i) (ia) of the Hindu Marriage Act, 1955 (hereinafter referred to
as ‘the Act’), has been dismissed.

2. Briefly stated, the parties got married on 09.05.1998, according to the
Hindu Rites and Customs at Arya Samaj Temple at Baroda, Gujarat. The
marriage was consummated and two daughters were born from their
wedlock on 25.03.1999 and 15.10.2004 respectively.

3. The petitioner/husband has asserted in his Divorce Petition that he
was working in Indian Army at the time of marriage, while the respondent
was a PHD in Management and was working as a lecturer and earning good
salary. The temperamental differences inter se the parties grew and the
respondent left the matrimonial home in May, 1999, without any justiciable
cause. She made a complaint to his Commanding Officer and consequently,
directions were passed for deduction of Maintenance Allowance from the
salary of the petitioner, to be paid to the respondent directly, w.e.f. July,
1999.

4. Eventually, the respondent joined the matrimonial home in
September, 1999, but continued to receive the maintenance from the Army
Authorities. The appellant approached the Army Authorities to stop the
deduction from his salary as the respondent had joined the matrimonial
home, but the respondent had not disclosed this fact to the Authority, which
caused immense pain and agony to the appellant.

5. The appellant further claimed that he suffered an injury in his leg and
was admitted in the Army Hospital, Udhampur, from September, 2001, for
six months, but the respondent did not take care and left him to the mercy of
the hospital.

6. The respondent despite getting a handsome salary, never contributed

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to the household expenses and made derogatory remarks against the
appellant for being less qualified than the respondent. She had immense
inclination and affinity for her parental family and would frequently visit her
parental home without informing the appellant.

7. On 29.01.2007, the respondent demanded separate residence from the
mother of the appellant and when she refused, the respondent gave beatings
to the old aged mother and threw her out of the house. The
petitioner/appellant was compelled to set-up a rented accommodation in
Paschim Vihar but because of the callous attitude of the respondent, the
landlord asked him to vacate the premises. He made alternate arrangement
of another rented accommodation at Vikas Puri, but the respondent refused
to shift to the new accommodation or stay in the company of the appellant.
The respondent preferred to reside in Paschim Vihar accommodation and
did not permit the appellant to enter the premises.

8. Rather, she filed a complaint under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 on 18.10.2007, without any
reasonable cause and thereby withdrew herself from the company of the
petitioner. The repeated requests of the appellant did not yield any result.
He, therefore, filed a Petition under
Section 9 of the Act, for Restitution of
Conjugal Rights. With great efforts of the appellant, the respondent
consented to live with him w.e.f. 04.05.2009, consequent to their Settlement
in December 2008 . He withdrew his Petition under
Section 9 of the Act and
the parties started residing together.

9. However, the conduct of the respondent continued to be indifferent
and she refused to establish conjugal relationship. She also refused to
withdraw her complaint under
Domestic Violence Act, 2005, in complete

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violation of their Settlement, despite the petitioner having withdrawn his
Restitution of Conjugal Rights petition.

10. The appellant asserted that the respondent would frequently call the
local police on false and frivolous pretext because of which the petitioner
was subjected to humiliation, atrocities and cruelty.

11. Thus, he filed the Petition bearing HMA No. 506/2010 under Section
13 (i) (ia) of the Act, to seek divorce on the ground of cruelty. The
respondent filed her Written Statement but due to compelling circumstances,
he had to withdraw his Divorce Petition on 25.04.2012.

12. The appellant has asserted that the conduct of the respondent
continued to be torturous, who humiliated him in front of his friends,
relatives and neighbours resulting in his severance of relationship from his
friends and neighbours.

13. On 03.12.2011, the respondent came to the rented accommodation of
the petitioner and caused injury to his aged mother. She again came to the
rented accommodation on 07.04.2012 and again abused his mother and
called the Police. The petitioner’s niece and cousin sister came to meet him
and his mother on 11.08.2012. The respondent came to his residence and
abused him and called the Police before whom she made allegations of
adultery against him. She again called the Police on 02.03.2013, when the
sister of the mother of the petitioner, came to their house for a visit. The
respondent tried to forcibly entered their house on 02.08.2013, while he and
his mother had gone out of station. She also threatened to implicate the
appellant in false cases.

14. The appellant has asserted that they have been living separately since
2006 and their marriage has completely broken down. He thus, filed the

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present Petition under
Section 13 (i) (ia) of the Act, seeking divorce on the
ground of cruelty.

15. The petition was contested by the respondent, who in her Written
Statement, took the objection that the earlier Divorce Petition bearing HMA
No. 506/2010, was based on similar allegations as the present Petition and
the same was unconditionally withdrawn on 25.04.2012, without seeking
any liberty to file the petition again on the same grounds. The present
petition being on similar grounds, was barred under law and was liable to be
dismissed.

16. The respondent further asserted that the appellant has failed to comply
with the Order of Maintenance awarded by Mahila Court vide Order dated
26.07.2010. The appellant, despite being a highly qualified Engineer and
supporting a high status in society, was an egoistic and short-tampered
person, who often indulged in physical and mental violence towards the
respondent and the two daughters. She always gave proper respect to the
elders in the family and always discharged her duties and responsibilities,
despite which she was subjected to ill-treatment and abuse by the appellant.
He also ignored his responsibilities towards the respondent during her
pregnancy and physically abused her on 05.04.1999.

17. She has claimed that she along with the minor daughters, was thrown
out of the matrimonial home in May, 1999, when she went to reside in her
parental home. Under these circumstances, she was compelled to approach
the Commanding Officer of the Army, with a request for maintenance as the
appellant had stopped maintaining her.

18. The respondent further asserted that the conduct of the appellant
became even more cruel, after the birth of second daughter. She was forced

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to lodge a report of Domestic Violence on 28.02.2007, as she was brutally
attached by the appellant and his mother. Subsequently, the appellant left
their house in Paschim Vihar, without any reason and shifted to another
accommodation, without informing her.

19. The respondent submitted that pursuant to the Petition under Section
9 of the Act, filed by the appellant without any reason, she joined the
matrimonial home but the appellant failed to adhere to the terms of their
Settlement. She was subjected to grave physical violence on 11.08.2012, on
which date, she caught him red-handed with another strange lady at his
residence. She and the two daughters were severely beaten up by the
appellant.

20. The respondent thus asserted that it was she, who was subjected to
cruelty and that petition was liable to be dismissed.

21. The issues were framed on the pleadings on 10.11.2016, as under:-

“(i) Whether the petitioner is entitled to a decree of
divorce on the ground of cruelty under
section 13(1) (ia) of
the HMA, 1955? OPP

(ii) Relief.”

22. The learned Principal Judge, Family Courts, observed that the
matrimonial disputes amongst the spouses often lead to conflicting evidence,
with no corroborative evidence. It is left for the Court to decide the complete
truth to do complete justice. It was observed that the complaint dated
11.08.2012, was admittedly made by the respondent and their daughter, in
regard to the incident in which, she and the daughter had been inflicted
injury. The respondent had alleged about the adulterous act of the appellant
of being present with a strange lady. It was concluded that the appellant
could not advantage of his own wrongful act by alleging that the respondent

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has made false allegations of adultery. A reference was also made to the
proceedings under
Section 12 of the Domestic Violence Act, 2005, wherein,
it was found that the respondent has been able to prima facie establish that
she had been subjected to domestic violence. It was held that the withdrawal
of the respondent from the company of the petitioner, cannot be held to be,
without any justified cause.

23. It was concluded that the allegations as made by the appellant, were
normal and natural outcome of long-standing matrimonial differences and
were not sufficient to constitute cruelty and against the appellant and his
family members; more so, when these allegations had not been substantiated
by any direct, cogent and definite evidence. The divorce petition was thus
dismissed. Aggrieved by the said judgment, the present appeal has been
preferred.

24. Submissions heard and record perused.

25. The first objection that has been taken by the respondent is to the
maintainability of the present Divorce Petition, as the earlier Divorce
Petition bearing HMA No. 506/2010, on the ground of cruelty had been
unconditionally withdrawn by the appellant on 25.04.2012, without seeking
any permission to refile the petition on the same grounds. However, it has
been rightly observed by the learned Principal Judge that while the present
petition contained the allegations that existed in the earlier Divorce Petition
but in addition, there were various other incidents alleged in the Divorce
Petition, which has transpired after the year 2010, when the first Divorce
Petition was withdrawn. Therefore, it could not be held that the present
Divorce Petition which included new grounds of alleged cruelty, was not
maintainable.

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26. The appellant a qualified Engineer working in the Indian Army, got
married to the respondent, who herself is a PHD in Management and
working as a Lecturer since 09.05.1998. However, being educated is no
guarantee of a successful marriage. The incompatibility in the two, became
evident soon after the marriage. Admittedly, the respondent had left the
matrimonial home in May, 1999 and had returned after about five months in
September, 1999. Though, there are no cogent explanation of their
prolonged separation but one inference which can be safely drawn is that
there was incompatibility, which led to the separation of the parties, soon
after the marriage for a period of about five months. In this period, the
respondent admittedly approached the Commanding Officer and a
maintenance amount was deducted from the salary, to be paid directly to the
respondent.

27. It is not in dispute that the mother of the appellant was residing with
them in the matrimonial home. It is further not under challenge that the
parties shifted to a separate rented accommodation in the Paschim Vihar in
January, 2007, where they resided together for some time. However, it is
also not in dispute that the appellant thereafter, arranged an alternate rented
accommodation in Vikas Puri, though the respondent was not willing to join
this rented accommodation and continued to stay along with her two
daughters, in the rented accommodation in Paschim Vihar.

28. It is further not in dispute that a Domestic Violence Petition under
Section 12 was filed by the respondent on 18.10.2007, against the appellant.
The appellant filed a Petition under
Section 9 of the Act, in which the parties
arrived at a settlement of December 2008 and they started living together.
The appellant in terms of the settlement, withdrew the Petition under Section

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9 of the Act, though the respondent was not forthcoming in withdrawing her
Complaint under
Section 12 of the Domestic Violence Act. It reflects that
despite all endeavours made by the appellant, the differences between the
parties did not get reconciled. Since things did not work out between the
parties and the appellant filed the Divorce Petition bearing No. 506/2010,
though the same was withdrawn on 25.04.2012.

29. It is evident that all the efforts of living together did not yield any
results and hostilities amongst the appellant and the respondent, continued.
The appellant has claimed that the respondent made false and frivolous
complaints against him in the Police Station. He narrated the incident of
03.12.2011, where the respondent visited the rented accommodation and
injured the old mother of the appellant. She again visited the rented
accommodation on 07.04.2012 and abused the mother. The police was also
called.

30. The major incident which happened was of 11.08.2012, on which
date, according to the appellant, his cousin sister and niece had come to their
house to meet the mother. The respondent came to the residence and abused
them and also called the Police and made allegations of adultery against
him.

31. This incident has been admitted by the respondent but with a different
version. According to her, the appellant was in an adulterous relationship
with a strange woman and she along with her younger daughter, who was
barely eight years old, went to the rented accommodation and even called
the police. The fight took place between them and the respondent made
Police Complaint alleging that the appellant had been bringing a lady to his
house regularly. According to her, she had taken the phone number of that

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lady and also her photograph. The narration does not end there because the
complaint of the respondent was supported with the complaint of her eight
years daughter of the same day to the police SHO, P.S.: Rani Bagh.

32. It is unfortunate that despite the respondent being educated, she was
unable to manage her sentiments and emotions, when it came to her
husband. She has made adulterous allegations against the appellant and
according to her, she had even taken the phone number and the photographs
of the lady. However, significantly nothing has found its way to the present
proceedings and no cogent evidence of the same has surfaced. Making such
unwarranted allegations of adultery without any corroboration, is an act of
mental cruelty as held in the case of
Vijaykumar Ramchandra Bhate v. Neela
Vijaykumar Bhate, (
2003) 6 SCC 334 and A. Jayachandra v. Aneel Kaur,
(2005) 2 SCC 22. Similar observations were also made in the case of
Jayanti
vs Rakesh Mediratta, 2016 SCC OnLine Del 5760.

33. The differences between two adults may arise due to myriad reasons,
some may be temperamental or factual, but the irrationality of the conduct of
the respondent is brought forth by her conduct of involving in eight years
old child, in their disputes. The petitioner and the respondent may not have
been able to generate mutual affection, respect and understanding due to
their differences, but it does not justify the act of the respondent in
embroiling their minor daughter in their fights. Taking a small daughter
along with her with a specific design to the house of the appellant and then
to make allegations of adultery and call the Police, is an act of ruining the
psyche of a child and turning her against her father. A person may be a bad
husband but that does not lead to the necessary conclusion of he being a bad
father. The act of the respondent in trying to turn the children against their

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father and even making her write a complaint against her father, is a clear
case of parental alienation, which in itself is an act of grave mental cruelty.

34. This Court in MAT. APP. (FC) 309/2018 titled Sandhya Malik v. Col.
Satender Malik had observed that no matter how bitter the relationship
between husband and wife may become, it is not appropriate to involve the
child or embitter her against the father or to use her as a tool against him.

35. In the case of Prabin Gopal vs. Meghna 2021 SCC OnLine Ker 2193
in a similar situation, the Kerala High Court observed that the mother had
intentionally distanced the child from the father and had deprived the child
from the parental love and affection. It was a case of parental alienation
where the child, who was in the custody of one parent, had been
psychologically manipulated against the estranged parent. It was a strategy
whereby one parent intentionally displayed to the child unjustified negativity
aimed at the other parent, with the intent to damage the relationship between
the child and the estranged parent and to turn the child emotionally against
the parent. It was observed by Kerala High Court that the child has a right to
love and affection of both the parents and likewise, the parents also have a
right to receive love and affection of the child. Any act of any parent
calculated to deny such affection to the other parent, amounts to alienating
the child which amounts to mental cruelty. Since the child was in the
custody of the mother, it was held that the mother had breached her duty
which she owed as a custodian parent to instil love, affection and feelings in
the child for the father. Nothing can be more painful than experiencing one’s
own flesh and blood i.e., the child, rejecting him or her. Such wilful
alienation of the child amounts to mental cruelty.

36. This is a clear case of parental alienation where the respondent has not

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even spared her children and has involved them in her differences, with the
appellant. Such conduct of making unsubstantiated allegations of adultery
coupled with involving their child in the inter se disputes between the
parties, can be termed as nothing but an extreme act of cruelty.

37. We may also observe that admittedly, parties have separated in the
year 2006 and their efforts of re-conciliation, which followed thereafter, did
not succeed and the parties are living separately since the year 2011. There
is not an iota of evidence that after the parties separated, there was any effort
made for re-conciliation. Rather, the testimony of the appellant shows that
having separated from each other, the respondent repeatedly visited the
rented accommodation and made complaints to the police. The acts of the
respondent reflect her non-re-conciliatory attitude and also establishes that
she had withdrawn from the company of the petitioner and abandoned her
matrimonial relationship for no justifiable reason. For a couple to be
deprived of each other’s company and denial of conjugal relationship by the
other spouse, with no effort by the respondent/wife to resume matrimonial
relationship, is an act of cruelty as is held in the case of
Samar Ghosh v.
Jaya Ghosh (2007) 4 SCC 511.

38. We thus, conclude that the evidence on record proved that there is no
chance of reconciliation between the parties and such long separation
peppered which false allegations, Police reports and criminal complaints and
further aggravated by parental alienation, can only be termed as acts of
mental cruelty. This dead relationship has become infested with acrimony,
irreconcilable differences and protracted litigations; any insistence to
continue this relationship would only be perpetuating further cruelty upon
both the parties.

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By:VIKAS ARORA
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17:03:49

39. We, hereby conclude that the appellant has been able to prove
cruelty at the hands of the respondent. We hereby set-aside the
impugned Judgment dated 19.10.2018 and grant divorce on the ground
of cruelty under
Section 13 (i) (ia) of the Act, 1955

40. The appeal is hereby allowed.

41. The decree sheet be drawn accordingly.

(NEENA BANSAL KRISHNA)
JUDGE

(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 28, 2024
RS

Signature Not Verified
Digitally Signed MAT. APP. (F.C.) 326/2018 Page 13 of 13
By:VIKAS ARORA
Signing Date:01.03.2024
17:03:49

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