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Rajni Kant Srivastava vs Kumudini Srivastava & Anr on 1 May, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 01.05.2020
+ MAT.APP.(F.C.) 73/2020 and CM APPLs. 8528-29/2020
RAJNI KANT SRIVASTAVA ….. Appellant
Through: Mr. Puneet Jaiwal, Advocate with
appellant in person
versus

KUMUDINI SRIVASTAVA ANR. ….. Respondents
Through: None
CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MS. JUSTICE ASHA MENON

ASHA MENON, J.

1. This appeal has been preferred by the petitioner being
aggrieved by the judgment dated 16-11-19 passed by the Family
Court Tis Hazari, whereby it dismissed the petition filed by him under
Section 13(1)(i a) Hindu Marriage Act 1955 ( the ‘Act’, for short)
seeking divorce from his wife, the respondent, on grounds of cruelty.

2. The brief facts as are relevant for the disposal of this appeal are
as follows. The parties were married on 6-11-1995 as per Hindu rites
and ceremonies. After marriage, they started residing at the ancestral
home of the appellant/husband at Ballia. The couple also resided for
eight months at Varanasi, where the appellant/husband was employed.
As the health of his mother, who was residing with them, deteriorated,
they returned to Balia.

MAT.APP.(F.C.) 73/2020 Page 1 of 14

3. It is the further case of the appellant/husband that the
respondent / wife was of easy virtue, inasmuch as on 15.06.1997, he
had found her sleeping with his nephew in an objectionable position
and she promised never to repeat it again. Much later, in the year
2000, he found her to be talking to one Bahadur, the servant of her
maternal uncle, Sh. Bharat Sahai at Delhi and this raised his suspicion
as the respondent/wife wanted to remain at her uncle’s house at Delhi
and even proclaimed that Bahadur was better than him. The
appellant/husband has accused the respondent/wife of being in an
adulterous relationship with Bahadur as well as her maternal uncle,
Bharat Sahai and several other men.

4. It may be noted here that initially the petition for divorce was
filed by the appellant/husband at Varanasi and it was directed only
against the respondent/wife. The said petition was transferred to Delhi
whereafter an application was moved by him to implead Bharat Sahai
and Bahadur as co-respondents. During the pendency of the said
application, Bharat Sahai died and only Bahadur was impleaded as
respondent no.2 in the proceedings, who however, did not chose to
participate.

5. The appellant/husband also alleged that the respondent/wife
began neglecting him and his aged mother and began talking cruelly
to them and she pressurized him to let her continue staying at Delhi,
on the pretext of getting treatment for conceiving a child and also for
curing T.B. She began such treatment in the year 1997 and 1998 but
despite the doctor ruling out her chances of conception, upon her
MAT.APP.(F.C.) 73/2020 Page 2 of 14
insistence, the appellant/husband allowed her to go to her uncle’s
house in Delhi in the year 2000 when, during his stay there, he found
the respondent/wife to be indulging in illicit relationship with her
uncle and his servant. The appellant/husband found that his
complaints to the younger sister of the respondent/wife produced only
antagonism towards him. In the above circumstances the
appellant/husband claimed that he found it impossible to continue to
reside with the respondent/wife and sought divorce from her.

6. The respondent/wife opposed the divorce petition and described
it as an abuse of the process of law, being full of libelous content
made malevolently, recklessly and mischievously by the
appellant/husband. She denied that she had behaved badly with the
appellant/husband or his mother and claimed to have resided with him
at different places over a period of time. It was her contention that the
appellant /husband was unhappy as her maternal uncle, Bharat Sahai
was unwilling to keep his mother in his house at Delhi as he himself
was 80 years old. Further, all expenses for travel to and from Delhi
were borne by her maternal uncle, much to the satisfaction of the
appellant/ husband. Thus all her visits to Delhi were with his explicit
consent.

7. The respondent/wife further submitted that the
appellant/husband had pressurized her maternal uncle to pay them
Rs.5000/- every month for taking suitable premises on rent at
Varanasi and ultimately, her uncle paid him a sum of him Rs.12 lakhs
for purchasing a house. According to her, her visit to Delhi in May
MAT.APP.(F.C.) 73/2020 Page 3 of 14
2000, was not for any treatment as alleged by the appellant/husband in
the petition, but was for the purpose of collecting the gift cheque for
Rs.12 lakhs. She also pointed out that she had opened a joint S/B
account in the name of the appellant/husband and herself with the
City Co-operative Bank with Rs.5000/- that she had saved over time,
from out of the various payments made to her by her maternal uncle
and the gift cheque was deposited into the said joint account, which
she would not have done had she intentions other than that of a loyal
wife and had she harboured the feelings that she was being accused
of. She admitted that subsequently she was diagnosed with T.B. for
which she came to Delhi for treatment. She thus prayed that the
divorce petition be dismissed as meritless.

8. The appellant/husband filed a rejoinder denying the averments
made in the written statement. On the basis of the pleadings of the
parties, the following issues were framed by the learned Family
Court: –

i) Whether respondent, after solemnization of the
marriage had voluntarily sexual intercourse with
the persons other than petitioner, as stated in the
petition? OPP

ii) Whether respondent, after solemnization of the
marriage has treated the petitioner with cruelty as
stated in the petition? OPP

iii) Relief.

9. The appellant/husband examined himself as PW1 and brought
on record, his affidavit of evidence, as Ex.PW1/A. He examined a

MAT.APP.(F.C.) 73/2020 Page 4 of 14
clerk from Canara Bank, Sh. R.P.S.Grover as PW2. Both the
witnesses were cross examined by the learned counsel for the
respondent/wife but she chose neither to examine herself or any other
witness on her behalf.

10. After analyzing the evidence brought on record and considering
the arguments advanced on behalf of both sides, the learned Family
Court concluded that the appellant/husband had failed to prove his
allegation of infidelity and cruelty and in case there were any acts of
cruelty, these had been condoned and thus dismissed the petition.
Aggrieved, the present appeal has been filed.

11. Mr. Jaiwal, learned counsel for the appellant/husband argued
that the learned Family Court has erred in dismissing the divorce
petition as the respondent/wife had led no evidence and upon the
uncontroverted evidence led by the appellant /husband, he had proved
that the respondent/wife was in illicit relationships with her maternal
uncle and his servant. He further submitted that as the parties have
been living separately since the year 2000, the Family Court ought to
have granted divorce since it is apparent that the marriage had broken
down irretrievably.

12. It is no doubt true that the respondent/wife did not lead any
evidence. But the onus of proof was squarely placed on the
appellant/petitioner and he had to prove his allegations of adultery and
cruelty against her through cogent and incontrovertible evidence. Fact
also remains that the respondent/wife had succeeded in eliciting

MAT.APP.(F.C.) 73/2020 Page 5 of 14
support for her case through extensive cross examination of the
appellant/husband.

13. We have had occasion to hold that pleadings in a petition for
divorce must contain specific averments of cruel conduct [See:
MAT.APP.(F.C.) 209/2019, titled as Vikram Solanki vs. Suman
Lata, decided on 06.12.2019]. We therefore proceed to note the
following specific instances that have been pleaded by the
appellant/husband in the instant case: –

(a) That the respondent /wife was found sleeping with the
nephew of the appellant/husband on the night of
15.6.97 and she had apologized for such behavior,
vowing never to repeat it.

(b) Under the guise of treatment for conceiving a child,
she insisted on going to Delhi as she was interested in
living there and not at Varanasi/ Gorakhpur, with the
appellant/husband.

(c) She used to neglect him and his aged mother and
pressurized him to separate from his mother.

(d) She used to taunt him as being a low salaried person
who was unable to give her all facilities, unlike her
maternal uncle.

(e) On 4.7.2000 when the appellant /husband sought to
bring back the respondent/wife from Delhi where she
MAT.APP.(F.C.) 73/2020 Page 6 of 14
had gone in May 2000 for medical assistance for
conception, she had insisted that her uncle’s servant
return to Delhi as her uncle was alone but when he did
return, she refused to go back to her matrimonial home
on the plea that she had to get treatment for T.B. in
Delhi.

(f) When he visited Delhi, her maternal uncle had asked
the appellant/husband to sleep on the Takht in the
front room while asking the respondent/wife to sleep
in his room.

(g) On 22.7.2000 the respondent/wife proclaimed that
Bahadur was better than the appellant/husband and she
remained awake the entire night.

(h) On 23.7.2000, in the forenoon, he found the
respondent/wife whispering something to Bahadur in
the bathroom, which she stopped on seeing him.

(i) On 28.7.2000, he saw the respondent/wife talking to
Bahadur in the kitchen, that no family member usually
visited.

(j) That night, the appellant/husband found her trying to
slink to the room of Bahadur, but as the
appellant/husband woke up due to a sound, the

MAT.APP.(F.C.) 73/2020 Page 7 of 14

respondent/wife pretended to go to the bathroom and
returned.

(k) Though the respondent/wife and her sister had come to
tend to the ailing mother of the appellant/husband on
26.8.2000, she insisted on returning to Delhi on
9.9.2000 and refused to take care of the mother and
also threatened the appellant/husband that if he tried to
come to Delhi to bring her back, he would be beaten
with shoes.

(l) After much persuasion, she agreed to accompany him
to Varanasi on 10.9.2000, but once again the
respondent/wife quarreled at the Varanasi Railway
Station and took a train to Delhi from there itself.

(m) Finally, in response to his telegram demanding that
she return by 18.9.2000 after her medical check-up,
the maternal uncle of the respondent/wife conveyed to
him telephonically that she would not be joining him
again and threatened to file cases against him for
demanding dowry.

14. Thus, asserting that as the respondent/wife had an aggressive
nature, having her own life style and was sexually attracted to her
maternal uncle and his servant, Bahadur and several other males,
despite his having filed a petition for restitution of conjugal rights in

MAT.APP.(F.C.) 73/2020 Page 8 of 14
the year 2000[ bearing No.387/2000] the appellant/husband desired a
divorce from her.

15. The above narration does not contain anything to reflect cruel
conduct on the part of the respondent/wife, except for the wild
allegations of infidelity leveled by the appellant/husband. Even if the
evidence in the form of the affidavit of the appellant/husband
containing all of these allegations stood uncontroverted through his
cross-examination, there would have been absolutely nothing to hold
in his favour, entitling him to a divorce. While on the one hand, the
appellant/husband alleges that the respondent/wife was hostile to his
mother, he himself admits that on his sending a telegram, she and her
sister had come to tend the ailing mother. Further, these averments
also indicate that the respondent/wife had been residing with the
appellant/husband at different places. The allegation of infidelity
appear to be based only on the suspicious mind of the
appellant/husband, without any concrete evidence brought on record
to substantiate the same.

16. But interestingly, the affidavit of evidence, Ex.PW1/A filed by
the appellant/husband, has gone beyond the pleadings which
tantamounts to improvements and embellishments that are
impermissible. Moreover, the appellant/husband has said nothing
about the alleged cruel behaviour of the respondent /wife towards
himself and his aged mother. His entire deposition is on her deviant
behaviour. A closer reading of the affidavit would also show that the
deposition is restricted to such alleged behaviour that relates back to
MAT.APP.(F.C.) 73/2020 Page 9 of 14
the year 2000. Therefore, the incidents of the years 1998 1999 as
pleaded by the appellant/husband, have not been referred to in
Ex.PW1/A or proved by him.

17. In the year 2000 the incidents referred to in the petition as
noticed above, allegedly took place in May, on 22ndJuly, 23rd July and
28th July. However, in his affidavit, Ex.PW1/A, the appellant/husband
has deposed in respect of incidents of 17thMay, 21st May,4th July,22nd
July, 23rd July,26th July,27th July, 28th July,29th July and 30th July
occurring in 2000 and on 25.01.2001.

18. As regards the alleged incidents of 17th 18th of May, 2000,
what the appellant/husband claims to have seen was that the
respondent/wife was sitting with her maternal uncle on the bed or she
was sleeping on the bed which really does not establish anything. It is
in respect of all the additional dates mentioned in the affidavit,
Ex.PW1/A that some explicit details have been given, which are
obnoxious to say the very least and do not deserve to be reproduced
here. But such embellishments shall have to be discarded as a rule of
prudence, since their very purpose is to strengthen a weak case and
cannot be given any weightage particularly when such details do not
find mention in the pleadings.

19. It must, however, be noted that despite allegedly finding the
respondent/wife in intimacy with her maternal uncle and his servant
in the months of May and July, 2000, the appellant/husband claims to
have worked to maintain the matrimonial relationship with her, which

MAT.APP.(F.C.) 73/2020 Page 10 of 14
seems to be very strange behavior. In August 2000, he even called her
by a telegram to tend to his ailing mother and the respondent/wife did
come to Gorakhpur with her younger sister and thereafter, she resided
with the appellant/husband till September 2000. Had there been an
iota of truth in the allegations of infidelity leveled by the
appellant/husband, neither would he have informed the
respondent/wife of the illness of his mother, nor would she have come
in response to the call and nor would the parties have resided together
for a month thereafter.

20. Moreover, the appellant/husband filed a petition under S.9 of
the Act which he withdrew after filing the divorce petition. However,
this would establish that despite all this alleged promiscuous behavior
of the respondent/wife, he was interested in continuation of the
marriage and thus, had condoned the alleged behavior, if at all it was
true. He has admitted in his cross examination that despite the
incident that took place on 28.07.2000, when he allegedly saw the
respondent/wife and Bahadur standing close to each other in the dark,
in the kitchen and engaging in pleasantries, he had requested the
respondent/wife ‘several times’ to join her matrimonial home and live
with him. This unnatural attitude of the appellant/ husband not only
falsifies his plea of adulterous behaviour of the respondent/wife, but
also dis-entitles him to a divorce on such grounds.

21. In any event, the falsity of the allegations leveled by the
appellant/husband are established beyond doubt from the facts averred
in the affidavit, Ex.PW1/A and the answers of the appellant/husband
MAT.APP.(F.C.) 73/2020 Page 11 of 14
to questions put to him during his cross-examination. It has been
admitted by him that it was in the year 2000, that the maternal uncle
of the respondent/wife had gifted a sum of Rs.12 lakhs to the parties
for purchasing a house. Had the uncle and niece been in any
relationship, why would the uncle have financed the purchase of the
house for the parties to reside together in Lucknow? Why would the
respondent/wife have agreed to opening of a joint account with the
appellant/husband to facilitate encashment of the demand draft,
admittedly issued in her name, if she was really interested in residing
in Delhi with her maternal uncle and his servant? Significantly, the
appellant/husband admitted during his cross-examination that he had
not purchased a house with that money and he was unable to explain
why he had not done so. Rather, he admitted that he had issued a
cheque for the purchase of a house in the vicinity of Lucknow, but
had stopped payment of the cheque and claimed that he was not
interested in purchasing a house. Pertinently, he never returned the
money to the uncle.

22. The level to which the appellant/husband has stooped is evident
from the fact that he knew that the respondent /wife had lost her
parents early in life and it was her maternal uncle, Bharat Sahai who
had brought her up and got her married off and had agreed to bear all
her expenses including the sum of Rs.12 lakhs given for purchasing a
house. He has admitted that it was the very same maternal uncle who
had performed the kanyadaan of his wife. Yet he did not think twice
before giving obnoxious details of an imaginary illicit relationship

MAT.APP.(F.C.) 73/2020 Page 12 of 14
between the two, despite the fact that the respondent/wife had stoutly
denied the said allegations in her written statement. To top it , he even
attempted to drag the elderly eighty years old uncle of the
respondent/wife to court by making him a co-respondent. Mercifully
death pre-empted his ignominy at the hands of a thankless and
perverted appellant/husband. The learned Family Court has rightly
observed that while he had absolutely no grounds to show cruel
treatment at her hands, the respondent/wife had been the one to have
been subjected to utter cruelty at the hands of the appellant/husband
who has made such unfounded and defamatory accusations against
her.

23. Then, to turn around and claim that as the marriage had
irretrievably broken down, divorce be granted in his favour, is the
pinnacle of insolence. None can be allowed to take advantage of his
own wrongs. Once the appellant/husband had got Rs.12 lakhs from
the uncle of the respondent/wife, he decided to put an end to the
relationship. At the same time, he did not even think it necessary to
refund that money to the respondent/wife till date. What is worse is
that he concedes to having written to the Bank instructing that the
respondent/wife be not permitted to withdraw any money from the
joint account in which the money given to her by her maternal uncle,
had been deposited. In other words, there is nothing on record to
establish irretrievable breakdown of the marriage, as the
appellant/husband seems to be continuing to reap benefit from it.

MAT.APP.(F.C.) 73/2020 Page 13 of 14

24. In the light of the foregoing discussion, we find no reason to
interfere with the judgment passed by the learned Family Court and
the same is accordingly upheld. The appeal is dismissed as being
meritless alongwith the pending applications.

(ASHA MENON)
JUDGE

(HIMA KOHLI)
JUDGE
MAY 01, 2020
pkb/s

MAT.APP.(F.C.) 73/2020 Page 14 of 14

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