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M vs A on 17 August, 2018

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision: 17th August, 2018

+ MAT.APP. 79/2010

M ….. Appellant
Through: Ms. Kajal Chandra, Ms. Prerna
Chopra and Mr. Vivek Kapur,
Advocates

versus

A ….. Respondent
Through: Mr. I.V. Raghav, Advocate along with
respondent in person.

CORAM:
HON’BLE MR. JUSTICE J.R. MIDHA
JUDGMENT

1. The appellant has challenged the judgment dated 23 rd February, 2010
whereby his petition for dissolution of marriage on the ground of cruelty
under Section 13(1)(ia) of Hindu Marriage Act has been dismissed.

2. The parties were married according to the Hindu rites and ceremonies
on 1st April, 1988 and three children were born out of their wedlock, namely,
one daughter and two sons. On 29th April, 2005, the appellant filed a
petition for dissolution of marriage on the ground of cruelty on various
grounds inter alia that the respondent had treated the appellant with cruelty;
there were continuous fights between the parties since marriage; the
respondent did not take care of appellant during his illness in 2002-2004; the
respondent made false allegations of illicit relationship against the appellant;

MAT. APP. 79/2010 Page 1 of 12

the respondent left matrimonial home for days without information; the
respondent filed false and frivolous cases against the appellant; and the
appellant had to leave the matrimonial home in October 2004 and was living
separately since then. The appellant averred that the respondent mixed the
powder given by a tantric in the food of the appellant due to which the
appellant fell sick.

3. The respondent contested the petition on various grounds inter alia
that the appellant had an illicit relationship with a lady named ‘Pushpa’ in
his office and he left the matrimonial home on his own due to his
involvement with Pushpa.

4. The appellant appeared in the witness box as PW-1 and reiterated the
averments made in the divorce petition. The appellant examined his
landlord and friend, PW-2, B.R. Madan who supported the appellant’s case.

5. The respondent appeared in the witness box as RW-1 and reiterated
her defence in the written statement. The respondent examined her neighbor
Mohan Lal as RW-2 who deposed that the appellant was having an illicit
relationship with the lady in his office.

6. The Trial Court held that the appellant had miserably failed to prove
the allegation of cruelty. The relevant portion of the judgment is reproduced
hereunder:

“31. PW1 (petitioner/husband) in his deposition deposed that
the marriage was solemnized on 1.4.88 according to Hindu
rites and ceremonies at Haryana and it was an arranged
marriage and there were three issues from the marriage namely
Baby Mahuri, Master Mohit Singh and Master Vishal Singh
and all the children are in custody of the respondent/mother.

32. PW1 in his statement deposed that after marriage, they
resided at A-47, Street No.2, New Modern Shahdara, Delhi. He
deposed that respondent was never cordial to him since

MAT. APP. 79/2010 Page 2 of 12
marriage and used to quarrel on each and every day on one or
another pretext and further used to ask to transfer the house in
her name and there was lot of interference of her family
members in their family affairs and therefore, he has severed
the relationship with the family of the respondent. In the year
1992, after fighting with the petitioner, respondent went to her
parental home with children of 1 and ½ year.

33. In cross-examination PW1 was asked questions
regarding that he had physically and mentally tortured the
respondent and she tolerated all the harassment in order to
save the marriage and she has never requested for transfer of
house in her name and further was asked that in November
1992, she was mercilessly beaten and finally her father came
and took her. Although he has denied all the suggestions but as
the allegations of non cordiality and family interference etc. are
general and vague in nature these allegations cannot be relied
upon.

34. PW1 further deposed that respondent used to allege that
he has illicit relations with other woman which could not be
said in the petition and further stated that the respondent has
filed a suit for permanent injunction Ex.PW1/1 and this court
can see the kind of allegations she used to make upon the
petitioner and stated that subsequently suit was withdrawn by
the counsel admitting that this is not technically correct suit.
The respondent had suggested PW1in cross-examination that
she had filed suit of injunction as the petitioner wanted to throw
her out of the house. Therefore, mere filing of injunction suit
does not suggest any kind of cruelty on the part of the
respondent. It is only an exercise of a legal right by
respondent. It, on the other hand, indicates the apprehension of
the respondent that the petitioner might at any time throw her
and children out of the house. The respondent had further
stated that this suit was withdrawn as the matter was
compromised. PW1 deposed that the suit was withdrawn
because it was not technically correct suit even cannot be
believed as the petitioner himself has not filed any order or
proceedings of the court regarding this. Therefore, filing of
permanent injunction suit cannot be considered as a ground of

MAT. APP. 79/2010 Page 3 of 12
cruelty on petitioner but on the other hand, it shows cruelty
upon respondent.

35. The allegation, as leveled in his deposition ExPW1/A,
that his condition being not good since year 2002 and he was
suffering from diarrhea, stomachache, headache etc, local
doctors could not be able to diagnose, therefore, he was
referred to hospital where all kinds of tests including
ultrasound etc., were conducted but ultimate result is that no
disease was diagnosed but his condition was deteriorating day
by day and whenever petitioner takes food at the time of dinner,
he suffers through vomiting, diarrhea, headache and
stomachache which remains throughout the night and on next
day, he feels that he has no energy for any work.

36. Petitioner further deposed that he saw respondent putting
some powder in his food and when he tried to inquire,
respondent replied him that this was garam masala and
therefore, he has no knowledge what was mixed. Though
respondent has placed medical records that he is under
treatment and various tests were conducted on him but he
himself has stated that the doctor could not diagnose the
disease. However, he has not produced any doctor in his
evidence who could state what is the cause of his deteriorating
health. There is nothing on record to show that cause of his ill
health is the food served by respondent. In his cross-
examination, he was suggested that he used to take meal most
of the time outside house.

37. There is a question asked by the respondent in cross-
examination to petitioner (PW1):-

Q:- Who asked you that you should not eat the food prepared
by the respondent?

A:- She never cooked the food for me.

38. This answer of the petitioner falsifies his entire story,
that the respondent used to cook food for him and used to put
some powder in that which deteriorated his health. However,
in his deposition Ex.PW1/A, he stated that doctor advised him
not to take food prepared by the respondent but in cross-
examination, he stated that I have not written this in my
pleadings. This further makes the entire allegation of food
adulteration false and frivolous.

MAT. APP. 79/2010 Page 4 of 12

39. PW1 in his statement has stated that it has been
confirmed to him that powder used in the food was given by
some tantric (sic) of Nand Nagari to the respondent. This
deposition in itself is vague and unbelievable. He has not
stated how it was confirmed to him that powder is given by
some tantric (sic) nor he has disclosed the name of tantric
(sic). In his cross-examination, he stated that this fact of tantric
was in fact told by his wife herself and same is denied by
wife/respondent in pleadings as well as in evidence. The
petitioner is leveling the allegations in air without any
foundation and on hearsay only. His allegations of contact of
the respondent with tantric is also unbelievable.

40. Petitioner in his deposition stated that respondent used to
fight with the petitioner in a regular way and at times even
police was called and therefore, in the month of October, 2004,
he has left the house and took a separate accommodation on
rent at Krishna Nagar @ Rs.1500/- per month and when in the
month of December 2004, the petitioner came to the house for
taking(sic) his remaining clothes, the respondent started
fighting and called the police and case was registered under
Section 107/151 Cr.P.C. and he was sent to Judicial Custody.
The respondent in cross-examination of PW1 had suggested
him that the police was called because the petitioner had
beaten the respondent.

41. The petitioner has filed a copy of the kalandra Mark B
collectively. A perusal of the kalandra shows that the petitioner went
to the house with the intention to beat and abuse the respondent. In
view of the evidence on record, it is not established that the act of the
respondent was wrong or false. It was only an exercise of a legal
right. There is no evidence that it was vexatious or abuse of the
power.

42. Further, for corroborating this incident, the petitioner has
examined PW2 Bodh (sic) Raj who stated that he accompanied with
the petitioner on that day to invite the respondent for his son’s
marriage (according to kalandra Mark B and the petitioner, the date
of incident is 4th December, 2002). It is pertinent to mention that it is
not the case of the petitioner either in pleadings or in his deposition
that on 4.12.2002, Bodh (sic) Raj accompanied him to the house.

MAT. APP. 79/2010 Page 5 of 12

43. PW2 in his cross-examination has stated that his son’s
marriage is of 4th and 5th December, 2004 and he has gone to the
respondent’s place for invitation 10-12 days before that, some time in
the month of November. Therefore, this averment that he has
accompanied the petitioner on the night (i.e. 4.12.2004) when the
police was called is false and shows that PW2 was not present and
deposing falsely.

44. The petitioner has examined PW2, Budh Raj, who vide his
deposition Ex.PW2/A stated that he is family friend and knows both of
them since 1988 and he has seen that the respondent used to quarrel
with the petitioner on one pretext or another and petitioner also left
matrimonial home in the year 1990 and further stated that the
petitioner has no illicit relations or does not even touch liquor and the
petitioner is not in good health for almost three years and when in the
first week of December, he went to serve the invitation card of
marriage of his son to the respondent. She started leveling
allegations against the petitioner and called the police. In order to
avoid conflicting circumstances, he along with petitioner left the
house.

45. In his cross-examination, PW2 Bodh Raj submits that he did not
go to meet petitioner but he comes to him and he tried to give good
counseling to both of them. It is evident from his cross-examination
that he does not go to the house of the petitioner and therefore, he
cannot direct evidence to any incident of misbehavior of the
respondent with the petitioner.

46. PW2 (Bodh Raj) miserably failed to prove incident of
misbehavior by respondent on 4.12.2004 by calling police as already
discussed and thus this witness is concocted and unreliable.

47. PW1 in his deposition as Ex.PW1/A has stated that petitioner
used to allege that he has illicit relations with other woman. In cross-
examination, the respondent had asked that he had illegal relations
with one Pushpa working in his office and he denied this suggestion.
RW1 in her statement also stated that the petitioner has illicit
relations with other woman and due to this, he has left the respondent
and children and living separately. In the cross-examination of
respondent (RW1), the petitioner has asked:-

Q:- Can you bring any proof to establish your allegation that
the petitioner is a drunkard or a womanizer?
A:- I will bring the proof on the next date (sic).

MAT. APP. 79/2010 Page 6 of 12

48. Cross-examination of RW1 then deferred for the next date. In
further cross-examination, the petitioner has not cross-examined
respondent (RW1) on the point of illicit relations. For corroboration
respondent examined RW2, he in his deposition Ex.RW2/A has stated
that the petitioner has illegal relations with a girl who is working in
Gas Agency with him and this is cause of quarrel between two but on
this point, RW2 was not cross-examined by petitioner on this point.
The petitioner failed to cross examine both RW1 and RW2 on point of
illicit relations. Therefore, respondent’s allegations of illicit relation
of petitioner with some girl working in his Gas Agency namely
Pushpa have some elements of truth as the petitioner in cross-
examination could not able to discredit the witnesses RW1 and RW2
on that aspect. Therefore, this allegation of illicit relationship does
not appear to be patently unfounded or false and therefore, petitioner
cannot take any benefit out of the same.

49. RW1 in her deposition Ex.RW1/A has stated that the respondent
was subjected to both physical and mental cruelty by the petitioner
and petitioner used to quarrel with her without any rhyme or reason
and she has never asked the petitioner to transfer his house in her
name and her family has never interfered in her family affairs. The
respondent deposed that she was compelled to do all household work
without rest. Furthermore, was subjected to extreme cruelty both
physically and mentally for demand of dowry as well as on other petty
matters. The allegations of dowry demand and cruelty physical and
mental by the respondent are general and vauge in nature. She could
not give any particulars or specific time and date when she was
tortured for demand of dowry or when physical and mental cruelty
committed on her. Therefore, this allegation of the respondent is not
believable.

50. RW1 further stated that due to illicit and illegal relation with
other woman, petitioner left the respondent and the children and is
living separately with some other woman. The petitioner has not
cross-examined the respondent on point of illicit relation but has only
raised one question whether she can bring any proof regarding the
petitioner is drunkard and womanizer. This kind of general question
is not sufficient to discredit the witness on allegations of illicit
relation as direct proof is hardly available of these allegations. The
petitioner has not given suggestion to RW1 and RW2 that he has no
illicit relation with any woman. Therefore, this allegation of illicit

MAT. APP. 79/2010 Page 7 of 12
relation though not very specific but at least given an impression that
the petitioner has illicit relations on considering the entire evidence
as such.

51. In her statement, RW1 further stated that she has filed a
petition under Section 125 Cr.P.C. and a suit for permanent
injunction. This further corroborates that the petitioner is not
maintaining the respondent and the child and even trying to throw
them out of the house.

52. The respondent has examined RW2 Mohan Lal who stated that
the petitioner and respondent resided on rent at 849 Geeta Colony
and from there he knows them. Main crux of his evidence is that the
petitioner has illicit relation with a girl working in his Gas Agency
and this is the cause of quarrel between them and further the
petitioner used to beat the respondent. The petitioner could not
materially discredit this witness by cross-examination. He even had
not put a single suggestion to the effect that the allegations of illicit
relation false.

53. The burden of proof is on the petitioner but the petitioner has
miserably failed to prove his allegations of cruelty. As per Bharat
Bhushan vs. Pratibha, 2007 (6) AD (Delhi) 58 the burden is on the
petitioner to positively prove his case but petitioner is unable to
discharge his onus of proof. Though respondent has not been able to
prove her version on certain aspects of dowry demand etc. but these
are not foundations of cruelties as per case of petitioner. It is settled
law that the case of petitioner does not get proved even if the defence
of the respondent fails. His case must stand on its own legs.

54. In the totality of the facts and circumstances of the case, issue
no.1 is decided in favour of the respondent and against the
petitioner.”

(Emphasis Supplied)

7. Learned counsel for the appellant urged at the time of the hearing that
the respondent had treated the appellant with cruelty. It is submitted that the
respondent showed absolute indifference and neglect towards the appellant
during his illness in 2002-2004. It is further submitted that the respondent
leveled false allegations of illicit relationship with Pushpa. It is further
submitted that the respondent leveled false allegations of being drunkard on

MAT. APP. 79/2010 Page 8 of 12
the appellant whereas the appellant is a teetotaler. It is further submitted that
the respondent filed false cases against the appellant. It is further submitted
that the parties are living separately since 2004 and the marriage between the
parties has irretrievably broken down and therefore, the marriage be
dissolved by a decree of divorce. Reliance is placed on Samar Ghosh v.

Jaya Ghosh, 2007 (4) SCC 511, Satish Sitole v. Ganga, (2008) 7 SCC 734,
Romesh Chander v. Savitri, (1995) 2 SCC 7, V.Bhagat v. Mrs. D. Bhagat,
AIR 1994 SC 710, G.V.N. Kameswara Rao v. G. Jabilli, AIR 2002 SC 576,
Parveen Mehta v. Inderjit Mehta, (2002) SCC 706, Dr. Vimla Balani v. Sh.
Jai Krishan Balani, 158 (2009) DLT 75, Smt. Kavita v. Rakesh Kumar,
178 (2011) DLT 743, Vimla Mehra v. K.S. Mehra, 158 (2009) DLT 136,
Sadhana Shrivastava v. Arvind Kumar Shrivastava, AIR 2006
ALLAHBAD 7, Sardar Avtar Singh v. Amarjeet Kaur Gandhi, 207 (2014)
DLT 294, Ajeet Panwar v. Babita, 2016 Lawsuit(Del) 4829 and K. Srinivas
v. K. Sunita, 2014 LawSuit (SC) 919.

8. Learned counsel for the respondent urged the following submissions
at the time of the hearing:-

8.1 The marriage between the parties solemnized on 1st April, 1988 and
three children from this wedlock were born on 30 th August, 1989, 13th
November, 1991 and 30th June, 1996. The appellant left the house on 13th
October, 2004 and threatened to sell out the residential property bearing
H.No.A-47, Street No.2, New Modern Shahdara, Delhi with a view to enjoy
his life without fulfillment of any liability towards the respondent and his
children. The respondent filed a civil suit for permanent injunction and a
petition under Section 125 Cr.P.C for maintenance against the appellant.
The civil suit was settled between the parties in the Mediation Cell on 3rd

MAT. APP. 79/2010 Page 9 of 12
December, 2007 on the terms that the appellant will not interfere in the
peaceful possession of the house by the respondent, without following due
process of law and the divorce petition was filed by the appellant under
Section 13(1)(ia) of HMA which was dismissed.

8.2 The appellant has left the respondent and children with a view to
enjoy his life without any interference of any kind from the side of
respondent as well as his children as he is a drunkard and a person of
romantic nature and he filed a divorce petition on completely false
averments and tried to take the advantage of his own wrongs. As per
allegations in the petition, some kind of powder given by a tantric was
mixed in his food by the respondent due to which the appellant had fallen
sick and to prove this allegation, the appellant neither examined the tantric
nor the doctor. PW1 contradicted this stated in his cross-examination dated
8th December, 2007 when he stated that “she (respondent) never cooked the
food for me (appellant)”.

8.3 All the allegations are vague in nature and the appellant could not
prove these allegations whereas the appellant must stand on his own legs and
to prove his own case to succeed. The appellant cannot be allowed to take
the advantage of his own wrongs, firstly by leaving the house with an
ulterior motive to enjoy his life without performing his legal duties towards
the respondent and his children and secondly, urging the ground for
irretrievable break-down of marriage which is purely due to the conduct/act
of the appellant himself.

8.4 The respondent appeared in the witness box as RW-1 and deposed
that the appellant had an illicit relationship with another woman and he left
the respondent and the children and was living separately with another

MAT. APP. 79/2010 Page 10 of 12
woman and was enjoying his illicit relationship. In cross-examination, the
appellant had put only one question to the respondent as to whether the
respondent can bring any proof to establish that the appellant was a
womanizer to which the respondent answered in affirmative that she can
bring the proof on the next date whereupon the cross-examination was
deferred. However, on the next date of cross-examination, the appellant did
not put any question on the aforesaid allegation.

8.5 The respondent examined her neighbor, Mr. Mohan Lal as RW-2 who
deposed that the appellant was having love affair with a lady in his office
and he used to go out with her. RW-2 further deposed that the appellant
even threatened the respondent to keep the lady with her otherwise he will
leave respondent. The appellant did not cross-examine RW-2 on the
aforesaid statement.

8.6 With respect to the appellant’s allegation that the respondent used to
mix some powder given by the tantric in his food, the appellant himself
admitted in his cross-examination that the respondent never cooked the food
for the appellant.

9. On careful consideration of the rival contentions of the parties, this
Court agrees with the learned Trial Court that the appellant has failed to
prove cruelty and the respondent has duly proved that the appellant cannot
be permitted to take benefit of his wrong. The Respondent deposed the
appellant had illicit and immoral relations with a lady named, Pushpa
working in his office and he left the matrimonial home for this reason but
the appellant chose not to cross-examine her on this aspect. The respondent
also produced RW-2 who corroborated respondent’s allegations and the
appellant chose not to cross-examine RW-2 on this aspect. There is no

MAT. APP. 79/2010 Page 11 of 12
infirmity in the well reasoned findings of the learned Trial Court reproduced
herein above. With respect to the appellant’s prayer for dissolution of
marriage on the ground of irretrievable breakdown, this Court is of the view
that this Court is not empowered to dissolve the marriage on the ground of
irretrievable breakdown. Reference be made to the judgement of Division
bench of this Court in Mini Appa Kanda Swami @ Mani v. M. Indra,
(2016) 234 DLT 243 (DB).

10. The appeal is dismissed.

AUGUST 17, 2018 J.R. MIDHA
dk (JUDGE)

MAT. APP. 79/2010 Page 12 of 12

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