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Rita Vashishtha vs Anil Kumar Vashishtha on 19 November, 2019

$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 23rd April, 2019
Judgment pronounced on:_19_November, 2019

+ MAT.APP.(F.C.) 188/2017

RITA VASHISHTHA ….. Appellant
Through: Mr.Vishesh Wadhwa, Mr.Saurabh
Dhingra, Ms.Swadha Gupta and
Mr.D.K.Sharma, Advocates
Versus
ANIL KUMAR VASHISHTHA ….. Respondent
Through: Mr.Anil Sharma, Mr.Arun Baali and
Mr.Kunal Nath, Advocates
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 16.09.2017 passed by the
Family Court by which the petition filed by the respondent/husband
seeking divorce under Section 13(1)(ia) of the Hindu Marriage Act,
1955 (hereinafter referred to as ‘HMA’) was allowed and a decree of
divorce has been granted.

2. The necessary facts to be noticed for the disposal of the present appeal
are that the marriage between the parties was solemnized on
03.11.1995, at Hathras-Uttar Pradesh, as per Hindu rites and

MAT. APP (F.C.) No.188/2017 Page 1 of 16
ceremonies. Two children were born from the said wedlock, who are
both major and are staying with their mother/appellant herein after
separation. As per the appellant/wife, she is staying separately since
15.06.2001. On 09.07.2001, a petition seeking divorce under Section
13(1)(ia) of HMA was filed by the respondent/husband before District
Court, Kanpur which was subsequently transferred to Delhi vide order
dated 18.11.2002 passed by the Supreme Court of India.

3. Mr.Vishesh Wadhwa, learned counsel for the appellant/wife submits
that the respondent/husband had infact failed to prove that the grounds
of cruelty alleged in the petition. There are no pleadings or evidence
which would establish the ground of cruelty. In fact, the main thrust
of argument of the learned counsel for the appellant/wife is that the
Family Court has simply relied upon the allegations made against the
respondent/husband either in the written statement filed by her or
during the course of her evidence. He submits that the only course
available to the respondent/husband was to amend the plaint and lead
additional evidence and the Family Court has thus erred in granting a
decree of divorce based on the pleadings and evidence of the
appellant/wife. He submits that his case would be squarely covered by
a recent decision of the Supreme Court in the case of SectionSuman Singh v.
Sanjay Singh reported at (2017) 4 SCC 85. Reliance is placed on
paras 18 to 21 which we reproduce below:

“18. In our considered opinion, both the courts below failed to
take note of this material aspect of the case and thus committed
jurisdictional error in passing a decree for dissolution of
marriage. We cannot, therefore, countenance the approach of
the High Court because it did not, in the first instance, examine

MAT. APP (F.C.) No.188/2017 Page 2 of 16
the grounds taken in the petition to find out as to whether such
grounds constitute mental cruelty or not? The finding,
therefore, though concurrent does not bind this Court.

19. We are not impressed by the submission of the learned
counsel for the respondent that an incident which occurred
somewhere in 2010 when the appellant visited the office of the
respondent and alleged to have misbehaved with the respondent
in front of other officers would constitute an act of cruelty on
the part of the appellant so as to enable the respondent to claim
divorce. In the first place, no decree for divorce on one isolated
incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both
exchanged some verbal conversation in presence of others
would not be enough to constitute an act of cruelty unless it is
further supported by some incidents of alike nature. It was not
so.

20. We are also not impressed by the submission of the learned
counsel for the respondent that since the appellant had made
allegation against the respondent of his having extramarital
relation and hence such allegation would also constitute an act
of cruelty on the part of the appellant entitling the respondent to
claim decree for dissolution of marriage. Similarly, we are also
not impressed by the submission of the learned counsel for the
respondent that since both have been living separately for quite
some time and hence this may be considered a good ground to
give divorce.

21. In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the ground of
cruelty taken by the respondent in his petition does not include
these grounds. Third, even if some stray allegations were made
by the wife in her pleading/evidence as were relied upon by the
learned counsel are of no relevance because, as mentioned
above, these grounds were not pleaded in the petition by the
respondent for seeking a decree of divorce and nor were put in
issue; and lastly, the burden being on the respondent, the same
could be discharged by the respondent by pleading and then
proving. It was not so done. It is for these reasons, we cannot

MAT. APP (F.C.) No.188/2017 Page 3 of 16
accept the aforementioned two submissions for affirming the
decree of divorce.”

4. The counsel for the appellant/wife further submits that the Supreme
Court has held that allegations made in respect of extra-marital
relationship would in fact not amount to an act of cruelty. While
relying upon para 20 of the aforementioned judgment, learned counsel
submits that merely because the parties have been residing separately
since the year 2001 can not be a ground to uphold the order of the
Family Court as the plea of irretrievable breakdown of marriage is not
a plea available to either of the parties in view of the law of this
country.

5. Additionally, it is submitted by the counsel for the appellant/wife that
the respondent/husband had submitted a long list of witnesses,
however, he only examined himself as PW-1. It is contended that an
adverse inference should be drawn against the respondent/husband for
listing ten witnesses and then not examining them.

6. Per contra, Mr. Anil Sharma, learned counsel for the
respondent/husband submits that the respondent is a Judicial Officer,
who has faced the brunt of repeated complaints being made to the
Chief Justice of India, the Chief Justice of the Allahabad High Court
and the concerned District Judges. The appellant/wife had indulged in
every form of cruelty to browbeat the respondent/husband.
Allegations pertaining to demand of dowry, complaint under Section
498-A of the Indian Penal Code (hereinafter referred to as ‘SectionIPC’),
allegations of illicit relations with many women, etc. have also been
made by the appellant/wife. Various newspaper articles with the

MAT. APP (F.C.) No.188/2017 Page 4 of 16
photographs of the respondent/husband were got published by the
appellant/wife. Interviews on Star news and Sahara T.V. were also
given by the appellant/wife. He submits that all the aforesaid factors
would amount to cruelty for the reason that all the allegations have not
been proved in any Court of Law. The wild allegations were since
made to lower the image of the respondent/husband. The allegations
are false, frivolous, unfounded and baseless. Reliance is placed on the
observations made by the Supreme Court in the case of SectionDr. (Mrs.)
Malathi Ravi, M.D. vs. Dr. B.V. Ravi, M.D. reported at AIR (2014)
SC 2881, more particularly paras 19, 23, 37 and 38. Reliance is also
placed on A. Jayachandra vs. Aneel Kaur reported at AIR (2005) SC
534 (head note B and paras 15 to 18), K. Srinivas Rao vs. D.A. Deepa
reported at AIR (2013) SC 2176 (head note A and B, paras 14, 22 and

23). Counsel further submits that the judgment of the Supreme Court
sought to be relied upon by learned counsel for the appellant/wife will
not apply to the facts of the present case for the reason that the
consistent view of the Supreme Court in the judgment sought to be
relied upon by him were not brought to the notice of the concerned
Court.

7. Reliance has been placed on SectionHiralal Moolchand Doshi vs. Barot
Raman Lal Ranchhoddas (dead) by L.R.s reported at AIR 1993 SC
1449 to contend that admissions made by the parties stand on higher
footing than the evidentiary admissions. Admissions, if clear, are the
best proof of the facts admitted and they are fully binding on the party
that makes them and constitute a waiver of proof. The counsel
submitted that in the present case, the appellant/wife has admitted that

MAT. APP (F.C.) No.188/2017 Page 5 of 16
she had treated the respondent/husband with cruelty. Thus, the Family
Court has rightly taken into account all the admissions made by the
appellant/wife and on this basis granted a decree of divorce.

8. Mr. Sharma, submits while relying upon the case of SectionNaveen Kohli vs.
Neelu Kohli reported at AIR (2006) SC 1675 and SectionV. Bhagat vs. D.
Bhagat reported at (1994) 1 SCC 337 and also the Division Bench
judgments of this Court that although irretrievable breakdown of
marriage is not a ground available but a factor which has been
consistently considered by the Courts along with the ground of cruelty
where there is separation for a long period of time and there is no
possibility at all for the parties to stay together. He submits that these
judgments would also apply to the facts of the present case as highly
scandalous allegations have been levelled against the
respondent/husband, who is a Judicial Officer. Every effort has been
made to tarnish his image and to ridicule him in the society by every
method available including by way of writing letters to the Chief
Justice of the concerned High Court, District Judges and by giving
T.V. interviews and publishing articles with his photographs. In such
extreme circumstances, besides allegations of being a man of easy
virtue and alleging that the respondent/husband has been indulging in
womanising with many women, coupled with the long separation of
more than eighteen years, the present case would not fall in the
category where there is possibility between the parties to reside
together. Mr. Sharma also submits that both the children are grown up
and the respondent/husband is looking after their needs including
education fees, etc. which he continues to do and has also made a

MAT. APP (F.C.) No.188/2017 Page 6 of 16
statement before the Family Court that he will also provide the
necessary expenses for them at the time of their marriage.

9. In rejoinder, learned counsel for the appellant/wife submits that the
judgments sought to be relied upon by learned counsel for the
respondent/husband would not apply to the facts of the present case.

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

11. We may note that the learned Family Court while granting decree of
divorce under Section 13(1)(ia) of HMA has taken into account the
allegations made by the appellant/wife and her father including
demand of dowry, allegations of promiscuity and registration of FIR
bearing No.231/01 under Section 498A/Section406 of IPC against the
respondent/husband and his family members. The Family Court made
following observations in paras 51 and 52 which read as under:

“51.In the light of the said discussion, we reach the climax part
in this unpalatable tale. A conjoint appreciation of the oral
evidence of PW-1 petitioner husband, RW-1 S.D.Dixit and RW-
2 respondent wife vis-a-vis the documentary evidence brought
on the record amply demonstrate that a series of motivated
complaints had been lodged by the respondent wife and her
father inter alia alleging corrupt practices on the part of the
petitioner husband in exercise of his judicial work, leveling wild
and unsubstantiated charge of his illicit relationship with lady
colleagues and other women, that tantamounted to causing
extreme pain, anguish and discomfort to the petitioner husband.
Such complaints resulted in calling of his comments by the High
Court of Allahabad from the petitioner husband, subjecting him
to face multiple inquiries, face loss in front of seniors,

MAT. APP (F.C.) No.188/2017 Page 7 of 16
colleagues, staff and subordinates clearly show that the such
calibrated moves were orchestrated by the respondent wife and
her father to seriously jeopardize the self esteem, reputation
and professional standing of the petitioner husband. The
respondent wife and her father strategically carried on the
tirade against the petitioner husband in the print and the
electronic media making him subject to public gossip, rumours
and ridicule.

52. Without further ado, the acts and conduct attributed to the
respondent wife, on her own or at the instigation or coaxing of
her father (RW1) considered cumulatively during the entire
history of this litigation certainly bring home that the petitioner
husband has subjected to great deal of mental harassment,
torture and cruelty. The acts or the conduct on the part of the
respondent wife since the time litigation started, demonstrate
that all through she acted out of sheer vengeance, leaving no
scope of reconciliation that has led to a complete or
irretrievable breakdown of marriage as well. As observed
earlier by this Court, the petitioner husband too had his share
of blemishes. Perhaps he was not an ideal husband and perhaps
he could have acted more positively to work out the
compatibility issues between the two of them, being a judicial
officer, but then in matrimonial disputes, the Law the does not
look for perfection in the spouses. Had they been ideal couple,
they would not have been litigating with each other.
Unfortunate as it may look, what the respondent wife has done
is not only to shut the door but also all windows of
reconciliation and that rules out even a slightest prospect of
resumption of marital union. Therefore, in the climax plot of the
sordid saga, the petitioner husband is able to prove that the
respondent wife has subjected him to great deal of mental
cruelty within the ambit and scope of Section 13 (1)(ia) of the
Act. The petitioner husband cannot be expected to put up with
such behavior and resume cohabitation with the respondent
wife.”

12. The first question which arises for our consideration is as to whether
Family Court has rightly granted a decree of divorce while relying

MAT. APP (F.C.) No.188/2017 Page 8 of 16
upon the pleadings and evidence of the appellant/wife and secondly;
whether the appellant/wife has treated the respondent/husband with
cruelty after solemnization of marriage.

13. We may note that the Family Court has rejected all the incidents of
cruelty raised by the respondent/husband in the petition filed by him
seeking divorce under Section 13(1)(ia) of HMA on the ground that
they are mere assertions and the same have not been substantiated.

14. There is no doubt that subsequent events which emerged in the
evidence of the parties and are admitted by the witnesses during Trial
can be relied upon by the Courts. The Family Court has relied upon
the case of SectionMalathi Ravi v. B.V. Ravi, reported at (2014) 7 SCC 640,
whereby the Hon’ble Supreme Court accepted the reasoning adopted
by the High Court and held that subsequent events which are
established on the basis of non-disputed material brought on record
can be taken into consideration. The relevant para 23, 27 and 28 read
as under:

“23. First we intend to state the subsequent events. As has been
narrated earlier, after the application of the wife was allowed
granting restitution of conjugal rights, the husband
communicated to her to join him, but she chose not to join him
immediately and thereafter went to the matrimonial home along
with a relative who is a police officer. After she stayed for a
brief period at the matrimonial home, she left her husband and
thereafter lodged FIR No. 401 of 2004 on 17-10-2004 for the
offences under Sections 498-A and Section506/Section34 of the Penal Code
and the provisions under the SectionDowry Prohibition Act, 1961
against the husband, his mother and the sister. Because of the
FIR the husband was arrested and remained in custody for a
day. The ladies availed the benefit of anticipatory bail. The
learned trial Magistrate, as we find, recorded a judgment of

MAT. APP (F.C.) No.188/2017 Page 9 of 16
acquittal. Against the judgment of acquittal, the appellant
preferred an appeal before the High Court after obtaining
special leave which was ultimately dismissed as withdrawn
since in the meantime the State had preferred an appeal before
the Court of Session. At this juncture, we make it absolutely
clear that we will not advert to the legal tenability of the
judgment of acquittal as the appeal, as we have been apprised,
is sub judice. However, we take note of certain aspects which
have been taken note of by the High Court and also brought on
record for a different purpose.

…. ……

27. From the acceptance of the reasons of the High Court by
this Court, it is quite clear that subsequent events which are
established on the basis of non-disputed material brought on
record can be taken into consideration. Having held that, the
question would be whether a decree for divorce on the ground
of mental cruelty can be granted. We have already opined that
the ground of desertion has not been proved. Having not
accepted the ground of desertion, the two issues that remain for
consideration are whether the issue of mental cruelty deserves
to be accepted in the obtaining factual matrix in the absence of
a prayer in the relief clause, and further whether the situation
has become such that it can be held that under the existing
factual scenario it would not be proper to keep the marriage
ties alive.

28. The learned counsel for the appellant has urged with
vehemence that when dissolution of marriage was sought on the
ground of desertion alone, the issue of mental cruelty can
neither be raised nor can be addressed to. Regard being had to
the said submission, we are constrained to pose the question
whether in a case of the present nature we should require the
respondent husband to amend the petition and direct the
learned Family Judge to consider the issue of mental cruelty or
should we ignore the fetter of technicality and consider the
pleadings and evidence brought on record as well as the
subsequent facts which are incontrovertible so that the lis is put
to rest. In our considered opinion the issue of mental cruelty
should be addressed to by this Court for the sake of doing

MAT. APP (F.C.) No.188/2017 Page 10 of 16
complete justice. We think, it is the bounden duty of this Court
to do so and not to leave the parties to fight the battle afresh
after expiry of thirteen years of litigation. Dealing with the plea
of mental cruelty which is perceptible from the material on
record would not affect any substantive right of the appellant. It
would be only condoning a minor technical aspect.
Administration of justice provokes our judicial conscience that
it is a fit case where the plenitude of power conferred on this
Court under SectionArticle 142 deserves to be invoked, more so, when
the ground is statutorily permissible. By such exercise we are
certain that it would neither be supplanting the substantive law
nor would it be building a structure which does not exist. It
would be logical to do so and illogical to refrain from doing
so.”

(Emphasis Supplied)

15. The counsel for the appellant/wife has placed reliance on Suman
Singh (supra) wherein the Hon’ble Supreme Court has allowed the
appeal filed by the wife challenging decree of divorce granted under
Section 13(1)(ia) of HMA on the ground that the allegations raised by
the husband against the wife were stale and solitary incidents. It was
held that both the Courts below have committed jurisdictional error in
passing a decree of dissolution of marriage. We find that the facts of
the present case are distinguishable for the reason that there is not a
single but multiple complaints lodged by the appellant/wife against the
respondent/husband. In the present case, the parties are living
separately for about eighteen years. In this backdrop, we are of the
view that there is no embargo in taking note of the pleadings and
evidence and to grant a decree of divorce while relying upon the same.

16. To decide the second issue, it would be necessary to discuss the
evidence available on record. After a careful reading of the material on

MAT. APP (F.C.) No.188/2017 Page 11 of 16
record, we find that the appellant/wife alongwith her father had made
complaints dated 07.07.2001, 11.07.2001, 20.07.2001, 26.07.2001,
18.08.2001 and 20.08.2001 to the President of India, the Chief Justice
of India, the Prime Minister of India, the Governor of Uttar Pradesh,
the Chief Justice of High Court of Allahabad, the concerned District
Judges and also to the Bar Associations. The details of which read as
under:

i) A complaint dated 18.08.2001 (Ex.RW1/DF) was lodged before
the Allahabad High Court;

ii) A writ petition bearing No.1105/2002 (Ex.PW1/14) was filed
before Allahabad High Court by which allegations of corrupt
practices and having illicit relationship with many women have
been leveled by the appellant/wife against the
respondent/husband;

iii) Various complaints dated 11.07.2001, 20.07.2001, 20.08.2001
and 17.01.2003 (Ex.RW2/P15 to Ex.RW2/P19) were made to
the Registrar General of High Court of Allahabad by which in
addition to the previous allegations, it was further alleged that
father of the appellant/wife had been receiving threats from the
respondent/husband and she had also fear for her life;

iv) A letter (Ex.RW2/19) addressed to the District Judge, Kanpur
Nagar by which allegations of corrupt practices were raised
against the respondent/husband;

MAT. APP (F.C.) No.188/2017 Page 12 of 16

v) Various Interviews were given by the appellant/wife and her
father to the reporters of daily Hindi Newspapers published in
Agra Division and got published in the leading newspapers such
as Amar Ujala (dated 19.11.2004), Rahstriya Sahara (dated
19.09.2004) and Lokayukt (dated 31.01.2005) that the
respondent/husband being a judicial officer, trying to influence
the outcome of trial pending against him;

vi) Interviews were given by the appellant/wife to Star News and
Sahara TV in which the allegations against the
respondent/husband were reiterated;

vii) Letters (Ex.RW2/P15 to Ex.RW2/P19) written by the
appellant/wife by which she had alleged that

respondent/husband was indulging in illicit relationship with
various women;

viii) Complaint dated 13.09.2004 (Ex.RW2/P13) made to the Chief
Justice of India by which it was alleged that the
respondent/husband has been tormenting and committing
cruelty upon her by making demand of dowry from her parents
and also the respondent/husband is trying to procure fake
certificate from a doctor declaring her to be a lunatic;

ix) One SLP bearing No.35/2003 (Ex.RW2/P6) was filed before
Hon’ble Supreme Court of India highlighting the fact that the
respondent/husband was trying to influence the investigation
pending against him in FIR No.231/2001 under Section

MAT. APP (F.C.) No.188/2017 Page 13 of 16
498A/406 of SectionIPC read with Sections 3 and Section4 of the Dowry
Prohibition Act.

17. Reading of the cross-examination of the appellant/wife would show
that she had admitted that she had filed certain complaints against the
respondent/husband. The appellant/wife also admitted that in the
complaints, she had stated that the respondent/husband used to
demand dowry articles and there are no other complaints except the
dowry demand. The appellant/wife further admitted that she had not
lodged any complaint against the respondent/husband at the Allahabad
High Court and only her father had lodged complaint against the
respondent/husband. The appellant/wife further stated that her father
had instructed the lawyer to prepare the written statement in the matter
and also instructed him to make allegations against the
respondent/husband. She has not mentioned in the written statement
filed by her that the respondent/husband is maintaining illicit
relationship with any women.

18. As far as the news articles are concerned, we find that it was admitted
by the appellant/wife in her cross-examination that they were
published at the instance of the appellant/wife and she had supplied
the photograph of their marriage to the newspaper reporters for
publication. As a result of this, a vigilance inquiry was initiated
against the respondent/husband and he was subjected to harassment.
With regard to the complaint made by the appellant/wife, the
appellant/wife had categorically admitted that since the
respondent/husband had filed a petition seeking divorce from her and
to teach him a lesson, she had filed all the complaints against him. We

MAT. APP (F.C.) No.188/2017 Page 14 of 16
may also note that it has emerged in the cross-examination of father of
appellant/wife who was examined as RW-1 S.D.Dixit that he gave a
bribe of Rs.3 lacs for getting the posting of his choice to the
respondent/husband.

19. 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/wife has treated the respondent/husband with cruelty
and made the life of the husband miserable by leveling false
allegations against him. Four consecutive closure reports by four
different Investigating Officers in favour of the respondent/husband
also point towards the harassment faced by him. The matter was again
re-investigated upon the directions of the High Court of Allahabad and
yet again a closure report was filed by the Police officials. The
conduct of the appellant/wife shows rift between the parties. Taking
into account all the complaints made by the appellant/wife and her
father against the respondent/husband, it can be inferred that the
appellant/husband has been treated with mental cruelty and faced
ignominy being a Judicial Officer. We are of the view that the decree
of divorce granted by the Family Court deserves to be affirmed on the
ground of mental cruelty.

20. 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

MAT. APP (F.C.) No.188/2017 Page 15 of 16
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 18 years. Thus, there is no possibility
between the parties to reside together. Keeping in view that the
respondent/husband is looking after the needs of the grown up
children and undertook to pay all the necessary expenses at the time of
their marriage. We do not find any infirmity in the view taken by the
learned Family Court. Accordingly, the appeal is dismissed.

21. In view of the judgment passed, C.M. No.38860/2017 also stands
dismissed.

G.S.SISTANI, J.

JYOTI SINGH, J.

NOVEMBER 19, 2019
\

MAT. APP (F.C.) No.188/2017 Page 16 of 16

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