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Ram Avtar Bairwa vs Sunita Devi @ Santra on 20 November, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 18th November, 2019
% Date of Judgment: 20_November, 2019

+ MAT.APP.(F.C.) 185/2018
RAM AVTAR BAIRWA ….. Appellant
Through: Ms. Radhika Arora, Advocate
Versus
SUNITA DEVI @ SANTRA ….. Respondent

Through: Mr. Satish K. Sansi, Advocate
CORAM:
HON’BLE MR. JUSTICE G.S. SISTANI
HON’BLE MS. JUSTICE JYOTI SINGH
G.S. SISTANI, J.

1. The present appeal has been filed under Section 19 of the Family
Courts Act, 1984 against the judgment dated 07.04.2018 passed by the
Family Court by which the petition filed by the appellant/husband
seeking divorce under Section 13(1)(i) and (ia) of the SectionHindu Marriage
Act, 1955 (hereinafter referred to as ‘HMA’) was dismissed.

2. The necessary facts to be noticed for the disposal of the present appeal
are that the marriage between the parties was solemnized on
30.10.1990, at Rajasthan, as per Hindu rites and ceremonies. Two
daughters were born from the said wedlock, who are staying with their
mother/respondent herein after separation. As per the divorce petition
filed by the appellant/husband, the parties are living separately since
01.06.2001. As per the cross-examination of respondent/wife, she is

MAT. APP (F.C.) No.185/2018 Page 1 of 18
staying separately since 2002. A petition under Section 9 of HMA was
filed by the appellant/husband on 24.09.2001. Subsequently, another
petition under Section 9 of HMA was filed by the respondent/wife on
25.09.2001. A settlement was arrived between the parties whereby
appellant/husband agreed to pay a sum of Rs.5,000/- per month to the
respondent/wife and she was to join back the matrimonial home,
however, she did not join the company of the appellant/husband.
Consequently, the said petition filed by the appellant/husband under
Section 9 was withdrawn by him on 09.10.2006.

3. A petition seeking divorce under Section 13(1)(ia) of HMA was filed
by the appellant/husband on 20.10.2006. Ground of adultery was
subsequently raised by the appellant/husband which was permitted to
be raised by the Family Court vide order dated 05.02.2009.

4. Ms. Radhika Arora, learned counsel appearing on behalf of the
appellant/husband submits that the impugned judgment passed by the
Family Court is mechanical in nature and has been passed without
applying law to the facts of the present case. The counsel further
submits that the appellant/husband is entitled to a decree of divorce on
the ground of cruelty alone as there were false cases filed by the
respondent/wife against the appellant/husband and his family members
which amounts to mental cruelty. It is contended that in one of the
cases titled as SectionState vs. Ram Avtar, filed by the respondent/wife, the
Trial Court vide order dated 05.08.2013 in FIR No.824/01 recorded
acquittal of the appellant as well as his family members. The Family
Court has failed to appreciate that filing of false case under Section
498A of IPC as well as complaint filed by the respondent/wife to the

MAT. APP (F.C.) No.185/2018 Page 2 of 18
superior officers of the appellant shows that she does not wish to stay
with him and is a ground sufficient to grant divorce to the appellant
herein.

5. It was contended by the counsel for the appellant/husband that the
respondent/wife has tried to tarnish the reputation of the appellant by
visiting his office on 29.12.1999 and a complaint was made by the
respondent/wife to his employer (Station Director) All India Radio,
Delhi. Attention of this court has been drawn to the office memo dated
31.12.1999 issued to the appellant/husband by the Station Director.
The counsel further contended that the respondent/wife has made a
false complaint to the husband’s employer and the same would amount
to mental cruelty. To buttress his argument, reliance has been placed
in the case of SectionSmt. Parveen vs. Sh. Hukum Singh reported at 2016
SCC OnLine Del 4556, more particularly para 17, 18, 19 and 34 to 36
by which a Division Bench of this Court while dismissing the appeal
filed by the wife has observed that a false complaint by the wife to the
husband’s employer would amount to mental cruelty. The relevant
paras 18, 19 and 34 to 36 read as under:

“18. In the decision reported as 19 (1981) DLT 64 SectionShakuntala
Kumari v. Om Prakash Ghai it has been held that a false
complaint by the wife to the husband’s employer would amount
to mental cruelty. The relevant paragraph of the report is
extracted as under:

‘A false complaint of this nature to an employer would
certainly amount to mental cruelty. It would bring down
the employee, in the eyes of his employer, and would
reflect on his career and promotional opportunities. This
would certainly play on his mind and affect his mental
peace.

MAT. APP (F.C.) No.185/2018 Page 3 of 18

A Government servant is expected to maintain a
reasonable and decent standard of conduct in his private
life and not bring discredit to his service by his
misdemeanours…’

19. In another decision reported as 1986 (1) HLR 625 SectionVinod
Kumar Sharma v. Nutan Sharma, it was held as under:

‘The court have had occasion to consider the effect of
complaints made to the employer, to persons in authority,
and to the police, in F.A.O. No 124/Section84 and Shakuntala
Kumari v. Om Parkash Ghai(1) 1981 DMC 25; SectionN.G.
Dastane v. S. Dastane [1975] 3 SCR 967; SectionLajwanti
Chandhok v. O.N. Chandhok (II) 1981 DMC 97; SectionKiran
Kapur v. Surinder Kumar 1982 RLR 37; SectionSharda Nand
Sharma v. Kiran Sharma 28 (1985) DLT 32; SectionGirdhari Lal
v. Santosh Kumari I (1982) DMC 180; and Jorden
Dlengdoh v. S.S. Chopra I (1982) DMC 224.
Such complaints, which are found to be baseless and to
have been made by one of the spouses, have in these
cases led to a finding of cruelty against the person
complained against. I see no reason why a complaint by a
person other than the spouse, who his identified himself
with the spouse on whose behalf or at whose behest he
has complained, should not be equated to the spouse, and
the act of such a person be not deemed to be the act of the
spouse. Here the person complained against was the
husband. I note from the judgment of the court below that
none of these judgments have been noticed by him, and he
is of the view that these complaints do not amount to
cruelty.

In view of the aforesaid judgments of this Court, and of
the Supreme Court there has to be a finding of cruelty by
the wife towards the husband. She made complaints or
got the complaints made to the employers and the police
which were found to be baseless on enquiry. Cruelty of
the wife being established, the husband would be entitled
to a divorce on that ground.’

MAT. APP (F.C.) No.185/2018 Page 4 of 18
…. ……

34. Legal position is well settled that making false complaints
containing allegations of indecent behaviour and making
defamatory allegations against the spouse, amounts to causing
mental cruelty to the other spouse. The plea taken by the
appellant/wife in the written statement that she did it all so that
her husband comes back to her, is no explanation. In somewhat
similar circumstances where false and defamatory complaints
were made against the spouse to win him back was held to be
amounting to causing mental cruelty to the husband.

35. In the decision reported as (2013) 5 SCC 226 SectionK. Srinivas
Rao v. D.A. Deepa it was held as under:-

’22. We need to now see the effect of the above events. In
our opinion, the first instance of mental cruelty is seen in
the scurrilous, vulgar and defamatory statement made by
the Respondent-wife in her complaint dated 4/10/1999
addressed to the Superintendent of Police, Women
Protection Cell. The statement that the mother of the
Appellant-husband asked her to sleep with his father is
bound to anger him. It is his case that this humiliation of
his parents caused great anguish to him. He and his
family were traumatized by the false and indecent
statement made in the complaint. His grievance appears
to us to be justified. This complaint is a part of the
record. It is a part of the pleadings. That this statement is
false is evident from the evidence of the mother of the
Respondent-wife, which we have already quoted. This
statement cannot be explained away by stating that it was
made because the Respondent-wife was anxious to go
back to the Appellant-husband. This is not the way to win
the husband back. It is well settled that such statements
cause mental cruelty. By sending this complaint the
Respondent-wife has caused mental cruelty to the
Appellant-husband.’

36. There is complete breakdown of the marriage. Thus, the
learned Judge Family Court was fully justified in passing a
decree for dissolution of the marriage.”

MAT. APP (F.C.) No.185/2018 Page 5 of 18

6. Ms. Radhika, learned counsel for the appellant/husband contended that
apart from the testimony of the appellant who was examined as PW1,
there are testimonies of other witnesses being PW2 Sh.Shiv Shanker
Dubey (tenant of the appellant), PW3 Sh.Vimal Verma (Professional
Photographer), PW4 Sh.Badri Prasad Bhagwat and PW5 Sh.Ganga
Sahai are sufficient to establish the ground of cruelty and thus, the
appellant/husband is entitled to a decree of divorce. The attention of
the Court is drawn to the evidence of PW3 Sh.Vimal Verma wherein
he had deposed that on 24.08.2008, at about 9.00 AM, he had gone to
the place where respondent/wife was staying and completed the
recording of respondent wherein she was shouting in the society as
‘Bachao Bachao’ and was using abusive language.

7. It is contended by the counsel for the appellant/husband that the
present case is one of a dead marriage where parties are living
separately for the last more than 13 years. The attention of the Court
has been drawn to the cross-examination of the respondent/wife in
proceedings under Section 498A of IPC whereby she stated as ‘I am
living separately from my husband since last 13 years’. Attention is
also drawn to the statement made by the respondent/wife during her
cross-examination in a civil suit seeking permanent injunction
whereby it was stated as ‘It is correct that since last 13 years, I see
Defendant No.1 in the court hearing only and there was no talk
between us since last 13 years’

8. Per contra, Mr. Satish K. Sansi, learned counsel appearing on behalf
of respondent/wife vehemently opposed the appeal filed by the
appellant and submits that the appellant and his relatives had thrown

MAT. APP (F.C.) No.185/2018 Page 6 of 18
respondent out of the matrimonial home on account of giving birth to
two girl children. The attention of this Court has been drawn to the
testimony of PW2 Smt.Sunita Devi in proceedings filed by her under
Section 498A of IPC before Metropolitan Magistrate, Mahila Court,
Dwarka whereby it was stated as ‘Accused Ram Avtar and his mother
told her that the girl child is not theirs and told them to undergo the
blood test to ensure the paternity of second child. Her parents left
after leaving her there. Thereafter, her husband and his relatives have
thrown her out alongwith her daughters. Thereafter, she came to her
parental house and filed a complaint in CAW Cell Ex.PW2/A.’

9. The counsel further submits that the evidence of PW4 Sh.Badri Prasad
Bhagwat is not trustworthy and cannot be relied upon. As per the
evidence of PW4, he had visited the house of the respondent/wife on
06.10.2006 where she had made a demand of Rs.1.20 Cr to withdraw
all the cases registered by her against the appellant and consequently,
she would stop harassing him. In this background, it was contended by
the counsel that demand of Rs.1.20 Cr made by the respondent/wife
does not amount to cruelty to the appellant/husband. Similarly, the
attention of this Court has also been drawn to the testimony of PW3
Vimal Verma to submit that he is not a reliable witness and the said
recording done by him was pre-planned. In support of his argument,
reliance has been placed on SectionV. Bhagat vs. D. Bhagat reported at
(1994) 1 SCC 337.

10. We have heard learned counsel for the parties and considered their
rival submissions and have given our thoughtful consideration to the
matter.

MAT. APP (F.C.) No.185/2018 Page 7 of 18

11. We may note that the learned Family Court while dismissing the
petition seeking divorce made the following observations. The
relevant paras read as under:

“32. The petitioner husband cannot derive much mileage from
the testimony of PW2 to PW5 either. PW2 Shiv Shanker Dubey
in general testified about the misconduct on the part of the
respondent wife in coming out her house E-190, Om Vihar,
Phase-5, Uttam Nagar, Delhi and shouting loudly, gathering
nearby people and calling for police alleging that she had been
beaten up by her husband. PW2 never says that he intervened
or made any personal inquiries about genuineness of the
shenanigans so put forth by the respondent wife. Moreover, this
witness too was not able to cite any specific instances of
misconduct on the part of the respondent wife. PW2 failed to
produce any document that he was residing in the neighborhood
and witnesses too. The testimony of PW3 Vimal Verma, that on
24.08.2006 he reached the site to conduct video recording of
the manner in which the respondent wife was behaving, is
utterly un-believable. Likewise, the testimony of PW5 Ganga
Sahai is very brief to the effect that about three years back
continuously two days he happened to see the wife of the
petitioner husband pouring kerosene oil upon herself and
although this witness was not cross-examined by the respondent
wife despite affording opportunities, since RW1 was not
confronted with any such fact in her cross-examination, this
witness also does not corroborate the version of the
matrimonial dispute and its history testified as deposed PW1.

33. Indeed, as canvassed by Sh. Dua, Ld. Counsel for the
petitioner husband it is not as if there were no blemishes on the
part of the respondent wife. As brought out in evidence, she
chose to file a complaint for harassment on account of dowry
after almost 10 years of marriage, and though it was initially
withdrawn, after a year or so, she sought revival of the
proceedings, but it did not result in any police action as such.
However, in the complaint to the police, which is marked X-7
dated 29.09.2006; she alleged illicit relationship between her
husband and his colleague. In this regard, RW-1 in her cross-

MAT. APP (F.C.) No.185/2018 Page 8 of 18

examination did depose that her husband was having illicit
relationship with the daughter of his landlord, namely Miss ‘X’
(identity protected for matter of privacy). However, on a
meticulous examination of the entire marital history of the
parties spanning for almost 15 years, it appears that the
conduct of the petitioner husband has been more blameworthy
than the respondent wife. It needs to be appreciated that the
petitioner husband is an educated person whereas the
respondent wife is an illiterate village, woman, and it appears
that the petitioner husband got disenchanted by the fact that she
had given birth to two daughters while he always wanted a male
child, as was observed in the judgment dated 26th February
2013 by the Hon’ble Judge of the High Court. Not much can be
read into the testimony of PW-1 that the respondent wife visited
his office and met his superior in as much as the PW-1
conceded that she visited only once on 29.12.1999, but there is
nothing to discern that she created any ruckus or did anything
to malign the reputation or character of her husband.”

12. The first question which arises for our consideration is as to whether
the appellant/husband has suffered cruelty on account of the complaint
filed by the respondent/wife to the Superior Officers of the
appellant/husband as well as before the Police officials and CAW cell.

13. It has been repeatedly held by the Supreme Court that making
unfounded indecent defamatory allegations against the spouse or his or
her relatives in the pleadings, filing of complaints which may have
adverse impact on the business prospect or the job of the spouse and
filing repeated false complaints and cases in the Court against the
spouse would amount to causing mental cruelty to the other spouse.
The Division Bench of this Court in the case of Smt. Parveen (supra)
has also held that making false complaints containing allegations of
indecent allegations and making indecent behaviour and making

MAT. APP (F.C.) No.185/2018 Page 9 of 18
defamatory allegations against the spouse amounts to causing mental
cruelty to the other spouse.

14. It is the case of the appellant/husband that on 29.12.1999, the
respondent/wife alongwith her brother met Station Director, All India
Radio, Delhi to complaint some problems with her husband. In this
regard one office memo dated 31.12.1999 was issued by Prasar Bharti
(BCI) AIR: New Delhi by which the appellant/husband was advised to
settle the matter on his own and that office will not intervene in the
same.

15. We may note that the said complaint made to the Station Director has
been mentioned in para 25 of the divorce petition filed by the
appellant/husband. Para 25 reads as under:

“25. That the respondent many times tried to eliminate the
reputation of the petitioner like she went visited to the office of
the petitioner for resolving of internal disputes from the higher
authorities of the petitioner. The same is exhibited as Ex.G.”

16. The said averment made in para 25 of the divorce petition was denied
by the respondent/wife in the written statement filed by her. The
relevant para 25 reads as under:

“25. Para No.25 of the petition is absolutely wrong and is
denied emphatically. It is denied that the respondent many times
tried to eliminate the reputation of the petitioner as alleged. The
respondent is aggrieved party and she has a right to make
legitimate claims from the petitioner.”

17. In this backdrop, we are of the view that no reliance could be placed
on such a document which is disputed by the respondent/wife in the
written statement filed by her, though, the respondent/wife had

MAT. APP (F.C.) No.185/2018 Page 10 of 18
admitted in her cross-examination dated 24.01.2012 when suggestion
was given to the respondent/wife by the counsel for the
appellant/husband that she has filed complaint to the Police officials
against the appellant/husband. At this stage, it would be necessary to
extract cross-examination of the respondent/wife. The relevant part
reads as under:

“……..My marriage was solemnized in the year 1990. After
Jaipur, the petitioner was transferred to Delhi and I alongwith
the petitioner came to Delhi and started living at Madangiri on
rented accommodation. I do not remember the period of our
stay at Madangiri. Thereafter, we shifted to Sagarpur, where
my cousin also used to reside. It is correct that I had lodged my
first police complaint from Sagarpur which was subsequently
settled. It is wrong to suggest that I had lodged that complaint
on asking of my father and brother. It is wrong to suggest that
in that complaint I had written that I had filed the said police
complaint at the asking of my father and brother. The complaint
in the year 2001 was made by at any one’s instance but because
the petitioner used to harass me.

…. …. …..

It is correct that I used to say that the petitioner had
illicit relations with the daughter of landlord of the petitioner.
The name of that daughter/girl was X. It is wrong to suggest
that I used to harass the petitioner by leveling such allegations
against him. It is wrong to suggest that my brothers used to visit
my matrimonial house at Sagarpur. I visited the Office of the
petitioner two times, when we were living together. I went to
meet the petitioner at his office. I do not remember if I had a
talk with the senior officers of the petitioner. It is wrong to
suggest that I had a talk with the senior officers of the petitioner
or I blamed that the petitioner is harassing me and the
petitioner had a relation with the daughter of his landlord.

It is wrong to suggest that despite the order at the time of
bail of the petitioner, in the criminal matter, I did not join the

MAT. APP (F.C.) No.185/2018 Page 11 of 18
company of the petitioner in the matrimonial home. I am living
separately from the petitioner since 2002. It is wrong to suggest
that on account of illicit relations of the petitioner with the
daughter of his landlord, I used to gather the local people in the
vicinity. It is correct that I had made a complaint against the
petitioner to the police alleging that the petitioner tried to kill
me, intentionally in a road accident, as the petitioner was
annoyed with me and was making false allegation that our
younger daughter is not his daughter. It is wrong to suggest that
as per order of the matrimonial court passed in a petition u/s 9
HMA, I had joined the company of the petitioner at the
matrimonial home but I had again started creating scenes. Vol.
rather it was the petitioner who once again started misbehaving
and did not give me money for running the house and eventually
left the matrimonial home, while I am still staying in that
matrimonial home. It is wrong to suggest that I had sprinkled
Kerosene oil upon myself and threatened the petitioner to set
myself ablaze and further created a scene by crying out loudly
outside the house. In 1999 the complaint which was made by
me, was made by me while I was accompanied by my brother.

At the time when I joined the company of the petitioner,
as per the orders of the Court, in petition u/s 9 there were TV,
bed, two chairs, Gas Cylinder alongwith Chulha and some
utensils in the house. All the said articles were belonged to the
petitioner. Vol. my entire dowry is lying at my matrimonial
house at Rajasthan. It is wrong to suggest that 1 had created
such circumstances that the petitioner had to leave the
matrimonial house and to ran away from the house, with an
intention to grab the house of the petitioner. I knew that the
house/property no. E-190, Om Vihar, Phase-V, Uttam Nagar,
Delhi, in which we used to reside belonged to the petitioner. I
know that till today the said property belongs to the petitioner. I
do not remember if I had filed a civil suit for permanent
injunction against the petitioner and his brother. It is correct
that a suit for vacating the premises has been filed by the
brother of the petitioner against me. Vol. the suit has been filed
by the petitioner and his brother jointly.

….. …. ….

MAT. APP (F.C.) No.185/2018 Page 12 of 18

It is wrong to suggest that I called my brothers to beat the
petitioner on several occasions. It is wrong to suggest that I am
demanding Rs. 1 crore 20 lacs to settle the matter from the
petitioner intentionally to harass and torture the petitioner.

….. …. ….

It is wrong to suggest that during the period of my stay at
Sagarpur, I went to my parental home for about 1 ½ years. It is
wrong to suggest that during the said period of 1 ½ years, I
became pregnant and subsequently gave birth to my younger
daughter at my matrimonial house. Vol. the younger daughter is
from my husband. It is wrong to suggest that during the said 1
½ period the petitioner did not meet me. Vol. there was no such
period of 1 ½ years of my stay at my parental house. It is wrong
to suggest that I used to threaten the petitioner that 1 will pour
the Kerosene Oil upon me deliberately to impose the false
allegations upon the petitioner and his family, It is wrong to
suggest that I am deposing falsely.”

18. The appellant/husband has also relied upon the testimony of PW2
Sh.Shanker Dubey who was residing as a tenant in the house of the
appellant/husband, on the first floor of the property situated at E-190,
Om Vihar, Phase-V, Uttam Nagar, New Delhi. PW2 stated in his
cross-examination that he started residing in the month of June, 2006
and vacated on 30th September 2006. PW2 used to pay rent to the
appellant who was residing at the ground floor of the said property. It
was stated by PW2 in his cross-examination that during his stay for
the period of four months, the Police had come about 4-5 times. Police
was called by the wife of the appellant. The wife of the appellant used
to come out of her room and used to shout and cry by saying ‘Maar
dala Maar dala’ and due to which mob gathered at gali. The appellant
had left the house on 25.08.2006 and did not return. The respondent
created troubles for him and his family. She used to throw water on his

MAT. APP (F.C.) No.185/2018 Page 13 of 18
belongings and also used to throw away his belongings, pelted stones
and used to abuse him.

19. The next witness relied upon by the appellant/husband is PW3
Sh.Vimal Verma was working as a professional photographer. PW3
stated in his cross-examination that on 24.08.2008, at about 9.00 AM,
he had gone to the house of the appellant for recording the activities of
respondent. He deposed the address of the appellant as E-190, Om
Vihar, Phase-V, Uttam Nagar, Delhi. It was voluntarily deposed by
him that he had started recording when he heard the respondent
shouting in the society as ‘Bachao Maar Dala’ and she was using
abusive language at that time.

20. PW4 Sh.Badri Prasad was working as a Manager in Dainik Jagran
Newspaper on the day of his evidence. He stated in his cross-
examination that on 06.10.2006, at about 7.30 PM, he had visited the
residence of the respondent in Uttam Nagar. He had gone to the house
of the respondent upon request made by her. PW4 further stated that
respondent asked him to settle her matrimonial issues with the
appellant for an amount of Rs.1 crore. When PW4 was leaving her
home, a further demand of Rs. 20 lacs was made by the respondent for
the expenses of the children.

21. Lastly, PW5 Sh.Ganga Sahay who was residing in the neighbourhood
of the appellant deposed that about 3 years back from the date of his
evidence, for two consecutive days, he had seen the respondent who
used to pour upon herself kerosene oil and kept shouting. Smell of
kerosene oil was detected from her clothes. PW5 further deposed that

MAT. APP (F.C.) No.185/2018 Page 14 of 18
when the said fact was informed by him to the appellant, he told him
that this was the reason due to which he was not staying in his home
and did not want to live with her. The testimony of PW5 could not be
tested by cross-examination as opportunity to cross-examine the said
witness was closed by the Family Court.

22. Reading of the testimony of respondent/ RW1 would show that
various complaints have been made by her to the Police officials. The
first Police complaint which was made by the respondent/wife was
lodged at Sagarpur. The respondent/wife has admitted in her evidence
that she used to say that the appellant/husband had illicit relations with
the daughter of his landlord. The respondent/wife had also visited the
office of the appellant/husband twice but she did not remember if she
had talked with the senior officers of the appellant/husband.

23. Applying the aforementioned law to the facts of the present case and
after carefully examining the evidence on record, we are of the view
that the appellant/husband has been able to show that the
respondent/wife has treated the appellant/husband with cruelty and
made the life of the husband miserable by leveling false allegations
against him. The order of acquittal dated 05.08.2013 passed by the
Metroplitan Magistrate by which the appellant/husband and his family
members have been acquitted under Section 498A of IPC after facing
long trial of almost nine years proves the innocence of the appellant.
Thus, levelling false allegations and subjecting the appellant to a long
drawn legal battle and its turmoil amounts to mental cruelty on the
appellant.

MAT. APP (F.C.) No.185/2018 Page 15 of 18

24. Coming next to the ground of infidelity raised by the
appellant/husband, it is the case of the appellant/husband that the
respondent/wife was in the habit of leaving the matrimonial home and
used to frequently visit her parental home. It was further stated that the
respondent/wife left the parental home in April, 1996 and then she
came back to reside with the appellant/husband in June 1997. Second
daughter was born on 13.09.1997. The appellant/husband is disputing
the paternity of the second daughter.

25. On the issue of fidelity of the respondent-wife, we concur with the
view and the observations made by the Family Court. The Family
Court has observed that while admittedly the birth of the first daughter
was on 17.05.1995, but the case set up by the husband that the
paternity of the second daughter born on 13.09.1997 was in sheer, bad
taste, unsubstantiated and unpalatable. In our view, the Family Court
has correctly noted that the husband had not named the alleged
adulterer and given the ground social and cultural ‘mores’ in the
community, to which the parties belong, it was unconceivable that the
appellant-husband would have accepted the return of the respondent-
wife to the matrimonial home in the background of these serious
allegations. The Family court has rightly observed that in the grounds
for dissolution of marriage initially, adultery was not even pleaded and
moreover it is not fathomable that the husband would file a petition for
restitution of conjugal rights if he had serious doubts about the fidelity
of his wife and paternity of the second child. To this extent, the
observations and the findings of the Family Court are upheld.

MAT. APP (F.C.) No.185/2018 Page 16 of 18

26. The Family Court has rejected the petition seeking divorce on the
ground that no specific instances of cruelty have been raised by the
appellant/husband and the instances which have come in the evidence
are general and routine allegations, which are not substantiated. No
specific instances of any rude, intemperate or abusive behavior have
been shown by the appellant/husband.

27. As far as the specific incidents are concerned, although, the specific
date and time has not been given for all the incidents averred, but the
appellant/husband has led enough evidence to prove specific instances
of the cruelty while relying upon the evidence of PW2 to PW5. We
find that the appellant/husband has been able to establish cruelty at the
hands of the respondent/wife.

28. As regards the irretrievable breakdown of marriage, we are of the view
that there is no doubt that irretrievable breakdown of marriage by itself
is not a ground under HMA, on which alone a decree of divorce can be
passed. However, the irretrievable breakdown of marriage is a
circumstance which the Court can take into account when cruelty is
proved and blend them together. There is no doubt that irretrievable
breakdown of marriage has been blended with cruelty in recent
judgments so as to dissolve the marriage between the parties, where
the marriage is completely dead and beyond repair. In the present case,
we find that the marriage is beyond salvage and the parties are living
separately for the last more than 13 years. Thus, neither of the party
would achieve anything by denying relief sought by the appellant. The
appellant/husband has faced mental agony for almost 13 years by

MAT. APP (F.C.) No.185/2018 Page 17 of 18
facing proceedings under Section 498A of IPC. The appeal is thus
allowed on the ground of Section 13(1)(ia) of HMA alone.

29. Decree sheet be drawn up in terms of Section 13(1)(ia) of HMA.

G.S.SISTANI, J.

JYOTI SINGH, J.

NOVEMBER 20, 2019
//

MAT. APP (F.C.) No.185/2018 Page 18 of 18

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