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S G vs R K G on 8 July, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 27.03.2019
Date of pronouncement: 8 .07.2019

+ MAT.APP(F.C.) 5/2018
SG ….. Appellant
Through: Mr. Arun Batta, Advocate

versus
RKG ….. Respondent
Through: Ms. Vikas Jain, Advocate
CORAM:
HON’BLE MR. JUSTICE G.S. SISTANI
HON’BLE MS. JUSTICE JYOTI SINGH

JYOTI SINGH, J.

MAT. APP. (F.C.) 5/2018

1. The present appeal has been filed challenging the judgment dated
23.09.2017 passed by the Family Court in HMA No. 783/14 whereby
the petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955
(hereinafter referred to as „HMA‟) filed by the respondent/husband for
dissolution of marriage has been allowed and the marriage has been
dissolved by a decree of divorce.

2. The relevant facts necessary for the disposal of the present appeal are
that the parties got married on 06.07.1989 as per Hindu rites and
ceremonies at Shahjahanpur, U.P. Two sons were born out of the said
wedlock on 09.08.1990 and 29.10.1992 respectively and are in the

MAT.APP(F.C.) 5/2018 Page 1 of 12
care and custody of the Appellant at Janakpuri, Delhi. The parties are
living separately since the year 2008.

3. Disputes and differences having arisen between the parties, the
respondent/husband filed a petition under Section 13(1)(ia) of HMA
seeking dissolution of marriage by passing a decree of divorce on the
ground of „cruelty‟. The grounds on which the divorce petition was
filed were that it was a simple marriage and no dowry articles were
demanded by the respondent herein. It was pleaded by the respondent
(petitioner in the Family Court) that since the very beginning, the
appellant (respondent before the Family Court) was not inclined to
live in the matrimonial home with his other family members and
showed her aggressive attitude. In order to get mental peace in his
matrimonial life, the respondent herein started residing separately
from his other family members but still the attitude of the appellant
did not change. The respondent further pleaded that the appellant
always ridiculed him in social circle because he had studied only up to
class 10th whereas the appellant is post graduate in economics. It was
also pleaded by the respondent that the appellant never used to do the
household work and picked up a quarrel whenever asked to do the
same.

4. The further case of the respondent was that the appellant used to beat
him up with the help of her brother to pressurize him to transfer the
entire property in her name and the appellant had filed a complaint on
02.01.2009 with PS Janakpuri. Both children, according to him, were
under the dominance and control of the appellant and she always
alienated him from the children. She even filed a false and fabricated

MAT.APP(F.C.) 5/2018 Page 2 of 12
complaint at the CAW Cell but due to lack of evidence, the same was
disposed of against her. The appellant is also stated to have filed a
case under Section 12 of the DV Act.

5. The respondent was also aggrieved that the appellant never respected
the elders and other family members of the respondent and very often
abused them. Her conduct was such that the respondent had gone into
depression and even suffered losses in the business and was thus
constrained to file the divorce petition.

6. The appellant contested the petitioner by filing her written statement
on 26.05.2010. It was pleaded therein that she was never given even a
single penny for running the household expenses in the last 3 years;
she was ill-treated by her in-laws; on many occasions she had been
turned out of the matrimonial home; all her streedhan was
misappropriated by her in-laws; the respondent was ill-tempered and
violent and both she and her children remained in a state of tension,
depression, constant fear and trauma, and that the present petition is
only a counter blast to her SectionDV Act case. On merits, the appellant had
denied the cruelties alleged in the petition. It was pleaded that she was
often beaten for bringing insufficient dowry. The respondent was for
the last 3 years having his meals in his brother‟s house and in fact, it
was her brother who was with great difficulty looking after the basic
needs of the appellant and her two sons.

7. In the replication filed by the respondent, he reiterated the averments
made in the petition and denied those in the written statements which

MAT.APP(F.C.) 5/2018 Page 3 of 12
were contrary to his case. On 08.12.2010, the following issues were
framed by the Family Court;

“(i) Whether the respondent has treated the petitioner
with cruelty? OPP

(ii) Whether the petitioner is entitled to decree of
dissolution of marriage U/s 13(1)(ia) of HMA? OPP

(iii) Relief”

8. In support of his case, the respondent examined himself as PW-1 and
tendered his affidavit in evidence as Exhibit PW-1/1 and relied upon
documents viz. Exhibit PW-1/A to E. Documents CW-1/D and E
were photocopies and were marked as Mark X and Y. He was cross-
examined by the appellant herein. In order to prove his case, the
respondent also examined PW-2, who was the record clerk from DDU
Hospital with reference to the MLC of the respondent Mark PX-1.
PW-3 was the Head Constable from PS Janakpuri who brought the
DD Register to prove the DD entry no. 36B dated 11.07.2008 which
was a complaint filed by the appellant. He testified that the record of
the complaint had been destroyed. He brought the photocopy of the
MLC dated 11.07.2008 and which was marked as Mark B. PW-4 was
the CMO from DDU Hospital, who was brought to prove the MLC
prepared by Dr. Sajid on 11.07.2008 as Dr. Sajid had left the Hospital
and his whereabouts were not known.

9. In support of her case, the appellant wife tendered her affidavit in
evidence vide Exhibit DW-1/A and relied on documents Exhibit DW-
1/1 to DW-1/3. She was extensively cross-examined by the
respondent. Son of the parties namely Ankit Gupta appeared as RW-2

MAT.APP(F.C.) 5/2018 Page 4 of 12
and tendered his affidavit in evidence as Exhibit RW-2/A and relied
on the Bank Account statement of the respondent as Mark A. RW-3 is
Niranjan Garg, the brother of the appellant, who tendered his affidavit
in evidence as Exhibit RW-3/A and relied on a copy of the Bank
Passbook of RW-1 as Exhibit RW-3/1. RW-4 was the Record Clerk
from DDU Hospital who proved the MLC of Niranjan Garg and
identified the signatures of the doctors on the MLC.

10. The Family Court after examining the pleadings and the evidence on
record, noticed that the parties jointly owned two houses, one in which
they were living and the other was let out and the rent was being
received by the appellant. It has come on record that the respondent is
living on the first floor whereas the appellant is residing on the ground
floor of the matrimonial home. As regards the MLC‟s produced by
both sides, the Family Court found that in the MLC of the respondent
there was a history of assault as mentioned by the Police but the
perpetrator of the assault was not mentioned. In the MLC produced
by the appellant, of her brother, RW-3, the claim of the appellant that
in the quarrel both the respondent and her brother sustained injuries
was found as not amounting to an act of cruelty on the part of the
appellant.

11. The Family Court, however, came to a finding that the appellant was
not cooking food for him, she was comfortable with her sons and
would render no emotional support to her husband and his non-
contribution to the house tax and electricity charges etc. could be
understood, as he was earning a meagre amount, by doing a typing job
and had no kind of support from the appellant. The Family Court has

MAT.APP(F.C.) 5/2018 Page 5 of 12
heavily relied on the cross-examination of the appellant where
according to the Court, she had admitted that she alleged extra-marital
relationship of the respondent with his Bhabhi and concluded that such
single utterance amounted to grave mental cruelty to the respondent as
a marital life is based on trust and faith between the parties.

12. In addition to the above, the Family Court found that in any event, the
parties had been living separately since 2008 and the marriage was
dead for all purposes. To allow such a marriage to continue only for
name sake, would be travesty of justice and as the appellant only
ridiculed the respondent because of his low educational status and
traumatized him in various ways, the marriage deserved to be
dissolved.

13. Reliance was placed on the judgments in MAT Appeal (FC) 36/2014
decided on 21.10.2016 titled Sandhya Kumari Ors. vs. Manish
Kumar Ors., Madhvi Ramesh Dudani vs. Ramesh K. Dudani,
2006 (2) Mh LJ 307 and Shrikumar V. Unnitan vs. Manju K. Nair,
2007 (4) KHC 807,where the concept of cruelty was blended by the
Court with irretrievable breakdown of marriage to pass a decree of
divorce.

14. We have heard learned counsels for the parties and examined their
rival submissions together with the pleadings and evidence on record.

15. A perusal of the pleadings and evidence exchanged between the
parties indicates that the basic cause of differences having arisen
between the parties was the difference in their level of education as the
appellant is a post graduate while the respondent is 10 th pass.

MAT.APP(F.C.) 5/2018 Page 6 of 12

Respondent was admittedly well off financially at the time when the
marriage was solemnized, but eventually he suffered losses in business
and this became a contributory factor in the differences getting
enlarged between the parties. The judgment of the family court
reveals that both the parties had claimed that mutual duties and
obligations were not being fulfilled towards each other, such as the
appellant wife was not cooking food; was comfortable with her sons
and was even guilty of assaulting the respondent in support of which
an MLC was produced. The respondent/husband on the other hand
did not pay any maintenance to the wife and had assaulted the brother
of the appellant on account of which he sustained injuries. He never
paid household expenses either, such as, electricity bills, house tax,
etc. The Family Court, however, has not given any finding as to how
these alleged acts by the appellant amounted to cruelty. The petition
had been filed by the respondent/husband seeking a decree of divorce
under Section 13 (i) (i-a) of HMA and an issue was framed as to
whether the appellant had treated the respondent with cruelty. The
respondent, however, could not prove any of these allegations. In the
absence of the respondent substantiating, with evidence, the acts
alleged, a decree cannot be passed. In fact, the Family Court has itself
not given any finding how the allegations in the petition were proved
or how they amounted to cruelty.

16. A perusal of the impugned judgment shows that what has primarily
weighed with the Family Court to conclude that the appellant had
treated the respondent with mental cruelty was the alleged deposition
of the wife in her cross-examination that she had alleged that her

MAT.APP(F.C.) 5/2018 Page 7 of 12
husband had extramarital relationship with his bhabhi. In fact, the
Family Court has observed in para 27 of the judgment that the
appellant has in her cross-examination admitted that she had made
such an allegation. This has heavily weighed with the Family Court to
come to a conclusion that this single utterance by the wife amounted
to grave mental cruelty towards the husband. The Family Court has
observed that the appellant being an educated lady and an owner of
two joint properties, given to her by her husband, should not have
defamed him in such a manner. Another factor which has weighed to
the Family Court is that the parties have been separated since 2008
and it was practically a dead marriage and thus applying the
judgments in the case of Sandhya Kumari (supra), it is found that
there is an irretrievable breakdown of marriage.

17. We have carefully gone through the cross-examination of the
appellant. We quote the relevant part of the cross-examination for
ready reference hereinunder:-

“Q. Have you blamed the petitioner by dragging his name
with his Bhabi (Shashi Gupta who is married to elder brother of
petitioner Promod)?

A. Yes, Voluntarily, when Shashi Gupta who is married to
elder bother of petitioner Promod abused me and threatened me
to take the divorce and left the house then I dragging his name
with his Bhabi.”

18. The question put to the appellant in the cross-examination was
whether she had blamed her husband by dragging his name with his
bhabhi, Shashi Gupta. The appellant answered in the affirmative, but
volunteered that when Shashi Gupta, who is married to the elder

MAT.APP(F.C.) 5/2018 Page 8 of 12
brother of her husband, abused her and threatened her to take divorce
and leave the house, it is then that she dragged the name of her
husband with the bhabhi. Being confronted with this, learned counsel
for the appellant explained that the Family Court has erred in
construing this answer as an admission that she had made allegations
of extramarital affair of her husband with the bhabhi. He submitted
that the answer has been taken out of context. In this regard, he drew
the attention of this court to certain paragraphs of the written
statement filed by the appellant and which we quote as under:-

“D. That it is pertinent to mention here that after Muhdikhaai
the Respondent had to hand over all the gifts received from the
relatives of her maternal side from the relatives of her maternal
side and in law to her sister in law (Zethani Smt. Shashi Gupta)
on the instructions of her husband, i.e. the Petitioner, which
were never returned back to her.

XXXX XXXX XXXX
G. That the Petitioner has also concealed the fact from the

Hon‟ble Court that just after the marriage the Petitioner had
started torturing Respondent for not bringing sufficient dowry.
The Petitioner and Zethani Smt. Shashi Gupta used to beat the
Respondent every now and then. They always used to taunt the
Respondent by saying that “We have married Rakesh in a
pauper family, they have given nothing in dowry and we can
not even face the society.”

H. That for whatever work, the Respondent did or
responsibility she took over, she was always taunted that it was
not done properly. Her sister in law (Zethani) Smt. Shashi
Gupta used to interfere in every matter connected with the
Respondent. Since the next day of the marriage, the
Respondent was doing almost everything in the house from
sweeping, cleaning, washing to cooking etc. her above named
sister-in-aw (Zethani) used to shout and scream and humiliate

MAT.APP(F.C.) 5/2018 Page 9 of 12
her. The work load was so much that the Respondent never got
the time to rest.”

19. The argument is that in the written statement the appellant had averred
that she was tortured for getting insufficient dowry and the respondent
along with Shashi Gupta used to beat her every now and then. Her
jethani Smt. Shashi Gupta used to interfere in every matter connected
with her and used to often shout and scream to humiliate her. It is in
this context that the appellant has volunteered in the cross-
examination that her husband along with her bhabhi used to abuse her
and threaten her and that is why she dragged his name with the
bhabhi. He clarified that there was no allegation that the respondent
was having an extra-marital affair with the bhabhi. He submitted that
no such statement was made in the cross-examination or any part of
the pleadings before the Family Court and the question of admitting
such a statement did not arise.

20. Having perused the written statement and the cross-examination we
are in agreement with the learned counsel for the appellant that the
Family Court has erred in holding that the appellant had admitted to
having made an allegation of extra-marital affair of her husband with
his bhabhi. The cross-examination and the written statement do not
support this observation of the Family Court. Thus, taking this as an
admission and making this as a ground of mental cruelty so as to
dissolve the marriage between the parties, in our view, is erroneous.

21. As regards the irretrievable breakdown of marriage, as observed by
the Family Court, we find that this part of the finding of the Family

MAT.APP(F.C.) 5/2018 Page 10 of 12
Court is also erroneous and not supported from the record of the case.
It has been a common case of the parties that the parties have been
living together in the same house, though on different floors. The
respondent had purchased the properties in the joint name of the
parties, though it may have been at the instance of the appellant. The
inter se allegations of the parties of not cooking food, not paying
certain electricity charges, house tax, etc. for some time on account of
business loss, having ego issues, about difference in educational
qualifications, etc. in our view are nothing more than a normal wear
and tear of an ordinary married life. The issue of cruelty having been
framed, the petition could only have been allowed if the petitioner
therein would have proved cruelty. We find that the petitioner therein
has not been able to substantiate the allegations of cruelty made by
him and thus the judgment of the Family Court dissolving the
marriage between the parties suffers from infirmity of law and
deserves to be set aside. 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. We do not agree with the Family
Court that in the present case the marriage is beyond salvage. In any
case,irretrievable breakdown of marriage by itself is not a ground
under the SectionHindu Marriage Act, on which alone a decree of divorce can
be passed. Even applying the judgments relied upon by the Family
Court, the irretrievable breakdown of marriage can only be a
circumstance which the Court can take into account when cruelty is
proved and blend them together. We have already observed above

MAT.APP(F.C.) 5/2018 Page 11 of 12
that in this case, the respondent could not substantiate the allegations
of cruelty, we cannot sustain the judgment of the Family Court on
account of irretrievable breakdown of marriage alone.

22. We thus find that the impugned judgment of the Family Court is not
sustainable in law and we hereby set aside the same and allow the
present appeal.

JYOTI SINGH, J.

G. S. SISTANI, J

JULY 8th ,2019
AK/rd

MAT.APP(F.C.) 5/2018 Page 12 of 12

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