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Sandeep Singh vs Jagwanti @ Nidhi on 28 February, 2024

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Delhi High Court

Sandeep Singh vs Jagwanti @ Nidhi on 28 February, 2024

Author: Suresh Kumar Kait

Bench: Suresh Kumar Kait, Neena Bansal Krishna

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: September 4, 2023
Pronounced on: February 28, 2024
+ MAT.APP.(F.C.) 182/2016 CM APPL.25202/2023
SANDEEP SINGH …… Appellant
Through: Mr. Naginder Benipal, Mr. Harithi
Kambiri Mr. Ankit Siwach,
Advocates

Versus
JAGWANTI @ NIDHI …..Respondent
Through: Mr. Manish Kumar, Ms. Aprajita Jha
Ms.Sanskriti, Advocates

CORAM:

HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT

SURESH KUMAR KAIT, J

1. The present appeal under Section 19 of the Family Courts Act, 1984
has been filed by the appellant against the judgment dated 08.09.2016
passed in HMA Petition No.297/2010, whereby his petition filed under the
provisions of
Section 13(1)(ia) of the Hindu Marriage Act, 1955 has been
dismissed.

2. The brief background of the case, as spelt out in the present appeal ,is
that the marriage between the appellant and respondent was solemnised on
15.01.2004 in Delhi as per Hindu rites and customs, however, no child was
born out of said wedlock.

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3. According to appellant, soon after their marriage, on 16.01.2004
during Kangana ceremony, the respondent wilfully caused injury to the
appellant with her hands. The appellant asserted that the respondent did not
respect his parents and expressed desires to stay separately in an
independent accommodation and made it clear that their relation would be
cordial only if he lives separately from his parents otherwise she will
implicate them in false case of dowry demand. The appellant alleged that
even parents of respondent joined her in the said demand.

4. The appellant has further averred that on 28.01.2004 brother of
respondent took her to the parental home for preparation of MA
examination. In the month of March, the respondent informed the appellant
that she had conceived, however, when the appellant and his family
informed her that they want to bring her back to the matrimonial home in
order to register her with the hospital for availing medical facilities, she
informed that she was not feeling well and had consumed medicines and so,
she was not pregnant anymore. The appellant has averred that he had to face
mental agony for respondent having aborted the child without his consent.
Thereafter, the respondent joined his company only in June, 2004.

5. The appellant has claimed that again in November, 2004, the
respondent left his company for appearing in examinations in December,
2004 and January, 2005 and came back only in August, 2005. The
respondent again left her matrimonial home in February, 2006 for appearing
in M-Phil. examination and returned in March, 2007, after a period of one
year.

6. The grievance of appellant is that the respondent was in the habit of

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leaving matrimonial home despite having been given a comfortable
congenial atmosphere. During all this period, the appellant did not send his
family members and so, the appellant acceded to her demand and shifted to
an independent accommodation in August, 2007. However, her behaviour
did not change. On 23.04.2008 when appellant’s mother and nephew visited
them, the respondent locked herself in a room in the rented accommodation.
She was not happy even with occasional visits made by appellant’s mother
or relatives which caused great mental cruelty and harassment to the
appellant. The appellant has averred that respondent did not even like him to
touch her and thereby denied him of his conjugal rights. The respondent also
raised unjust demand of their share in parental property of the respondent
which is self-acquired property of his parents.

7. On 12.11.2008, the respondent left company of the appellant without
his consent or will by throwing her Mangalsutra on his face and took away
all her belongings and jewellery. In this regard, the appellant made a
complaint to the police on 13.01.2009. Since 12.11.2008, parties have been
living separately.

8. On 31.08.2009, the appellant preferred the petition seeking divorce
under the provisions of
Section 13(1)(ia) and (ib) of the Hindu Marriage
Act. As an off-shoot of the divorce proceedings, the respondent lodged FIR
No.59/2010, at PS Kherki Dhaula, Gurgaon, under
Sections 498-A/406/506
IPC against the appellant and her family members wherein they have been
acquitted by the Court.

9. In the written statement filed by the respondent-wife before the
learned Family Court, the stand of respondent was that the appellant and his

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family members demanded the respondent’s father to spend Rs.10 lakhs on
the marriage which they, after some time scaled down to Rs.5 lakhs with
demand of motorcycle. However, when her father did not agree to it, they
insisted that they will not bring the baraat in the village and asked them to
make marriage arrangements in the city. The respondent averred that their
family belonged to village Khandsa, where her father with family was living
permanently but he had no option but to arrange the marriage in the city.
The appellant and his family members were not happy with the reception
and food provided in the marriage ceremony arranged by the father of the
respondent and also the dowry given. The respondent has alleged that the
appellant’s father taunted her that her father had not kept the promise of
dowry and only because of social pressure, he has brought her to their
matrimonial home. The respondent also alleged that her mother-in-law took
all the jewellery articles given to her in the wedding on the pretext of
keeping it safely, also she asked her to not make any physical relations with
the appellant as he was suffering from severe back pain even though he was
hale and hearty.

10. In July, 2004, the appellant snatched her Mangalsutra and stopped
talking to her; taking food prepared by her; refused to wear clothes washed
by her and when she complained this to her mother-in-law, she asked her to
leave matrimonial home for some days and stay with her parents so that
things could get normalised. Therefore, in January, 2005, the respondent
came back to her matrimonial home and again on the occasion of Makar
Sakranti, she was taunted for not bringing good clothes and good quality
blanket. Even on the occasion of her first Karwachauth, the appellant forced

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her to gift a suit worth Rs.1,000/- to her mother as per rituals, however, she
could only arrange a suit worth Rs.800/- for which she was taunted and
humiliated.

11. The respondent alleged in her written statement that the appellant was
working as x-ray/lab Technician and earning salary of Rs.30,000/- per
month, however, he never financially supported her. The respondent averred
that even though she is a postgraduate, however, she was taunted about her
qualification and she was never respected in the family. The respondent has
averred that whenever she complained the appellant about her problems,
instead of listening to her grievances, the appellant beat her, even his
mother, bhabi and father also instigated him to beat her. Once when the
entire family was out on a trip to Vaishno Devi, the appellant hit the head of
the respondent against the wall due to which she received internal head
injuries and even then, he did not talk to her for a very long time.

12. The respondent claimed that despite all this humiliation and
sufferings, she tried to adjust and stay with the appellant in order to save
their marriage, however, she was thrown out of house on 30.11.2008.

13. On the basis of pleadings of the parties, the learned Family Court
framed the following issues:-

“1. Whether petitioner has been treated with cruelty at
the hands of respondent after solemnization of marriage
as detailed in the petition? OPR.

2. Whether the petitioner is entitled to a decree of divorce
on the grounds as prayed for? OPP.

3. Relief.”

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14. To substantiate their case, the appellant got himself examined as PW-
1 and the respondent examined herself as RW-1.

15. The learned Family Court, after appreciating the testimony of the
parties vide impugned judgment dated 08.09.2016, held that even if
appellant was acquitted in the criminal case, it cannot be taken as gospel
truth narration of the matrimonial life of the parties and their conduct
towards each other during the course of their residing together. Further held
that the appellant has miserably failed to establish that he was subjected to
cruelty by the respondent and consequently, dismissed his petition.

16. Aggrieved against the aforesaid judgment, the appellant husband has
approached this Court on the ground that learned trial Court has failed to
consider that he was subjected to cruelty at the hands of respondent and the
findings returned by the learned Family Court are perverse and based upon
assumptions or personal beliefs of the Court. The instances mentioned by
the appellant were specific and substantiated with documents which were
not rebutted by the respondent and this has been ignored by the learned
Family Court.

17. Learned counsel for appellant submitted that learned Family Court
has erroneously returned the findings that since respondent was pursuing
higher studies, her staying away from appellant was justified as the
atmosphere in her matrimonial home was not congenial to pursue her
studies. Further submitted that the learned Family Court has over looked the
fact that the respondent and his family members were acquitted in FIR
No.59/2010, registered at the instance of the respondent for the offences
under
Sections 498-A/406/506 IPC and thereby, no act of cruelty and dowry

MAT.APP.(F.C.) 182/2016 Page 6 of 21

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demand could be proved. The Court further failed to appreciate that the
respondent had voluntarily left his company in the year 2008 without any
justifiable cause or reason and the approach adopted by the learned Family
Court is illegal and thus, the impugned judgment deserves to be set aside.

18. This Court had heard learned counsel appearing on behalf of
both sides at length; the impugned judgment, deposition of witnesses
and the other material placed on record of the learned Family Court,
has been carefully perused.

19. The undisputed fact of the present case is that the parties got married
on 15.01.2004 as per Hindu rites and customs and no child was born out of
this wedlock. Since the time of their marriage in the year 2004, the
respondent, time and again, has spent a substantial time at her parental
home, to say that from January, 2005, till August, 2005; February, 2006 till
March, 2007; on the grounds of preparing for her MPhil examination.
According to respondent due to marital discord, she had permanently shifted
to her parental house in the year 2008, even though the appellant in the
matrimonial proceedings claimed that the parties have been living separately
since the year 2005. On 31.12.2009, the appellant filed the petition seeking
divorce from respondent under the provisions of
Section 13 (1)(ia) of the
Hindu Marriage Act, 1955 on the grounds of cruelty i.e. almost after a year
of having lived separately from respondent-wife.

20. On the aspect of cruelty, the Hon’ble Supreme Court in the case of V.
Bhagat Vs. D. Bhagat (1994) 1 SCC 337, has held that mental cruelty under
Section 13(1)(ia) of the Act, 1956 can broadly be defined as the conduct
which inflicts upon the other party such mental pain and suffering as would

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make it impossible for that party to live with the other. In other words,
mental cruelty must be of such a nature that the parties cannot reasonably be
expected to live together. The situation must be such that the wronged party
cannot reasonably be asked to put-up with such conduct and continue to live
with the other party. It is not necessary to prove that the mental cruelty is
such as to cause injury to the health of the party. What is cruelty in one case
may not amount to cruelty in another case. It is a matter to be determined in
each case having regard to the facts and circumstances of that case.

21. To adjudge whether behavior of one spouse towards the other falls
within the definition of cruelty as has been enunciated under
Section 13
(1)(ia) of the Hindu Marriage Act, 1955 and catena of decisions rendered by
the Hon’ble Supreme Court and this Court. The Hon’ble Supreme Court in
the case of
A. Jayachandra Vs. Aneel Kaur, (2005) 2 SCC 22, observed as
under: –

“10…If from the conduct of the spouse, same is
established and/or an inference can be legitimately
drawn that the treatment of the spouse is such that it
causes an apprehension in the mind of the other
spouse, about his or her mental welfare then this
conduct amounts to cruelty. In a delicate human
relationship like matrimony, one has to see the
probabilities of the case…… Therefore, one has to
see what are the probabilities in a case and legal
cruelty has to be found out, not merely as a matter of
fact, but as the effect on the mind of the complainant
spouse because of the acts or omissions of the other.

XXXX

XXXX

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13. …..However, insignificant or trifling, such
conduct may cause pain in the mind of another. But
before the conduct can be called cruelty, it must
touch a certain pitch of severity. It is for the Court to
weigh the gravity…… Every matrimonial conduct,
which may cause annoyance to the other, may not
amount to cruelty. Mere trivial irritations, quarrels
between spouses, which happen in day-to-day
married life, may also not amount to cruelty. Cruelty
in matrimonial life may be of unfounded variety,
which can be subtle or brutal. It may be words,
gestures or by mere silence, violent or non-violent.”

22. In the year 2010, i.e. after filing of divorce petition by the appellant,
the respondent lodged a complaint against the appellant and his family
members, based upon which FIR No.59/2010 under
Sections 498-A/406/506
IPC was registered (Crl. Case No.99/2012) and consequently, the appellant
and his family faced trial before the Judicial Magistrate First Class,
Gurgaon, Haryana. The learned court vide judgment dated 19.02.2014 while
acquitting them, observed and held as under:-

“10. I have considered the arguments and have
gone through the case file very carefully and
minutely. The prosecution has examined six
witnesses namely PW1 Complainant Jagwanti,
PW2 her brother Naveen kumar, PW3 SI Jagdish
Rai, PW4 her mother Krishna Devi, PW5 Durga
Parshad and PW6 investigating officer Narotam
Parshad. PW4 Krishna Devi who is mother of
complainant specifically admitted in her cross-
examination that at the time of first talk of
marriage her daughter was not selected by the
boy and no dowry demand was put forth at that
time. She also deposed that Sham Singh and
Bharat Singh told her that family of Sandeep is

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well settled and her daughter will be happy there
and on this fact the relationship was entered into.
It means conduct accused „family was known to
the parents of complainant and on basis of their
good reputation of accused family the relationship
was entered into, moreover testimony of PW2
Naveen Kumar is not sufficient to prove the
accused guilty for offence alleged. It is pertinent
to mention here that deposition of PW2 Naveen
Kumar that he did not want custody of
matrimonial articles in police custody could not
support allegations leveled against accused
because it implies from it that accused had bona-
fide in regard to the same. The deposition of PW1
complainant that accused and his family members
demanded the dowry before marriage is not
sustainable because a prudent man of society
could never enter into relationship with a person
who desired or demanded dowry before marriage
specifically in the social strata to which parties
belong. Moreover, PW1 complainant Jagwanti
mentioned various incident of mental and physical
cruelty with time, however, she failed to
acknowledge the same in her cross examination.
She deposed that she never told her family
members about beatings but this statement does
not inspire confidence of the court because in
Indian society when newly married lady is
subjected to any type of cruelty by her in-laws,
she would definitely share it with any of her
family members. The complainant filed her
complaint Ex.PW1/A against six members of her
in-laws family and all the said accused persons
except her husband were found innocent in the
investigation. The complainant has also alleged
that the accused gave beatings to her but no
medical record to that effect is on the case file.
The complainant has completely failed to cement

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her allegations put forth against the accused
person. There are just vague and general
allegations against the accused person.
Accordingly, there is no cogent and convincing
evidence on record to prove the guilt of the
accused beyond the shadow of reasonable doubt.
Therefore, the prosecution has failed to prove the
guilt of the accused Sandeep. Accordingly, the
accused is acquitted of the charges framed
against him.”

23. It is further relevant to note that the respondent-wife had also filed a
complaint under
Section 12 of the Protection of Women from Domestic
Violence Act, 2005 (hereinafter referred to as ‘
DV Act’) against the
respondent before Judicial Magistrate First Class, Gurgaon Haryana, which
was dismissed vide judgment dated 02.01.2016 observing and holding as
under:-

“9. Perusal of the case file reveals that
factum of marriage between the applicant and
respondent is admitted. It is observed that the
complainant has filed the present complaint
against her husband Sandeep only but has also
attributed the role of her mother-in-law, Bhabhi
Saroj, one sister in law Kanta and her husband
Omkar. However, nothing incriminating in
evidence against the abovementioned person has
come on record. Further the applicant by way of
application/complaint as well as her affidavit has
averred some facts relating to mental torture and
injuries caused by respondent and his family
members and denial by her husband of food
prepared by applicant and cloths washed by her
and other facts regarding physical relation.
However, the applicant has also been failed to
prove these abovesaid averments. The applicant

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has examined as many as three witnesses.
However, no independent witness has been
examined by the applicant to corroborate her
version qua the sufferance of any domestic
violence at the hands of the respondent and his
family members. Nothing relevant and cogent
evidence has been produced on record, which
could show that she was beaten by the respondent
and due to which, injuries were sustained on her
person. Moreover, the contention of the applicant
that during the tour of Vaishno Devi, her husband
hit her from her head against a wall, due to which
she received head injuries as well as on the Eve of
Diwali, bleeding was also suffered by her, is also
not tenable. Due to non-examination of any Doctor
and non-production of any medical document. The
contents of application reveals an averment
regarding a Panchayat held in the year 2009 to
resolve the matter but no respectable person from
the Panchayat has been examined by the
complainant/applicant to prove the same. It has
also come to my notice that she had a stay at house
of respondent‟s sister which had been comfortable
and peaceful and that arrangement was made by
Sandeep. It shows that the applicant had no issue
with Sandeep. In this way, the applicant has failed
to prove the domestic violence against her
husband.

Further it is the contention of learned counsel
for the respondent that a criminal case under
sections 498-A, 406 and 506 IPC has already been
decided, wherein respondent has been acquitted
from the charges levelled against him. It is duly
proved by the certified copy of judgment dated
19.02.0214 titled as
State Vs. Sandeep passed by
the Court of Shri Ashok Kumar, learned JMIC,
Gurgaon that complainant was not subjected to
any cruelty by respondent and his family.

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10. In view of the above said discussion, I am of
the considered view that the applicant has failed to
establish her case and she is not entitled to any
relief under the
Domestic Violence Act, 2005.
Therefore, I do not find any merit in this
application filed by the applicant. Hence, this
present application is hereby dismissed.”

24. Aggrieved against the judgment dated 02.01.2016, the respondent had
also preferred an appeal (CRA No.10/2016) before the Court of Sessions,
Gurgaon, which was also dismissed vide judgment dated 12.10.2018
holding as under:-

“10. Applying the above said proposition of
law to the facts in hand and after re-appreciation
the entire evidence on record, it comes out that
during the course of arguments it is undisputed
case of counsel for the appellant-wife that side by
side of this litigation the respondent-husband has
already filed a divorce petition against the
appellant-wife which is pending in the Family
Court at Rohini, Delhi and in that petition the
respondent -husband is already directed to pay
maintenance of Rs. 4,000/- per month as per the
order dated 06.8.2011, copy of which is Ex-RW/B.
Then it is also admitted that side by side
appellant-wife has also lodged a criminal case
vide FIR No.59 of 2010 and after investigations
the police has challaned only the respondent-
husband and after being put on trial vide
judgment dated 19.02.2014 the respondent-
husband is already acquitted extending him
benefit of doubt and it is a fact that no further
appeal etc. has been filed against
the said
judgment Lastly, it is also a fact that present
petition was also filed on the basis of same

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allegations alleging that she was maltreated and
harassed by the respondent-husband and thrown
out of her matrimonial home which were found to
be doubtful by the court while acquitting
respondent-husband. Then it is also a fact that
when this petition was filed no interim relief was
ever sought in view of the interim maintenance
granted in the divorce petition which is still going
on between the parties and lastly it is a fact that
on account of matrimonial dispute between the
parties the appellant-wife was already living
separately from the respondent-husband well
before the filing of the present petition. Rather,
even if we assume that the stand taken by the
appellant-wife in this regard is correct stand, in
her affidavit she alleged that she was thrown out
of her matrimonial home on 30.11.2008.
Although, this fact was denied by the responded-
husband alleging that she is residing separately
from him since 2005 and deserted him. But even if
we assume that the matrimonial relationship
comes to an end in the month of November, 2008
the present petition has been filed after more than
one year being filed on 24.12.2009, whereas as
per the law
laid down by the Hon‟ble Apex Court
in Inderjeet Singh’s case (supra) such a petition
must be filed within one year of the last incident
otherwise domestic relationship comes to an end.
Thus, keeping in view all these facts and
circumstances it is a fact that when this petition
was filed the parties were not in any domestic
relationship as matrimonial dispute was already
going on and they were residing separately. At the
same time a divorce petition is already going on
between the parties and thus the appellant-wife
has every right to seek all available reliefs of
maintenance etc. In divorce petition interim
maintenance is already granted to her and thus in

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given facts and circumstances, the learned trial
court rightly concluded that she is not entitled for
any relief under the provisions of
DV Act
especially when it is admitted fact that there is no
domestic relationship between the parties and the
petition has been filed after more than one year of
the separate living which amounts to end of the
domestic relationship so far as the reliefs under
the
DV Act are concerned and thus no new
interpretation is possible………………….. As held
above, it is prima facie proved at this stage that
both the parties are not in domestic relationship
for prescribed period before are not in domestic
relationship for prescribed period before and at
the time of filing of this petition, as such, there is
no question of any domestic violence by the
appellant to the respondents in any manner which
is the sine-qua-non of the maintainability of a
petition under
DV Act. Thus, the impugned order
of the learned Adjudicating Magistrate is well
founded and affirmed accordingly.”

25. The learned Family Court in the impugned judgment has noted that
the contents of the complaint, which was filed by the respondent against the
appellant in Gurgaon, were not brought on record by filing certified copies
and so, no observation could be given. Even with regard to acquittal of
appellant in FIR No.59/2010, under
Sections 498-A/406/506 IPC, the
learned Family Court has observed that neither the copy of FIR nor the
Charge-Sheet nor the final judgment, has been proved and thus, again no
observation could be given. The learned Family Court also observed that in
criminal cases the prosecution has to establish the offences of the accused
beyond the shadow of doubt whereas in civil cases especially in divorce
cases, the petitioner has to stand on his/her own legs in accordance with the

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preponderance of probabilities and that only because such appellant has
been acquitted in criminal cases, cannot be taken to be a gospel truthful
narration of the matrimonial life of the parties.

26. However, the certified copies of the judgments passed by the Courts
at Gurgaon in proceedings under the provisions of
DV Act as well as FIR
No.59/2010 under
Sections 498-A/406/506 IPC have been placed before this
Court and we find that the allegations levelled by the respondent against the
appellant and his family members in her complaint, which culminated into
registration of FIR No.59/2010 as well as her complaint under
Section 12 of
the DV Act, are verbatim similar as have been spelt out in her written
statement in the divorce proceedings. Also, in proceedings in Crl. Case
No.99/2012, under
Sections 498-A/406/506 IPC, the complainant had
stepped into witness-box as PW-1 and the prosecution had examined the
brother of respondent/ complainant as PW-2, father of the appellant as PW-
3, mother of the appellant as PW-4. Similarly, in proceedings under
Section
12 of DV Act, the respondent/complainant had examined herself as PW-1,
her brother as PW-2 and her mother as PW-3 and the appellant had stepped
into witness box as RW-1.

27. With regard to deposition of the witnesses, the Court at Gurgaon vide
judgment dated 19.02.2014 in Crl. Case No. 99/2012 observed that
respondent’s brother (PW-2 therein) had admitted that no medical
examination was conducted to prove the charge of beatings and also the
appellant had delivered the dowry articles to police but they refused to take
possession of the same. Also, respondent’s mother (PW-4) deposed that the
middle men, who had brought the marriage proposal of the parties, were

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known to them and the conduct of appellant’s family was well within the
knowledge of respondent’s family. Based upon the deposition of brother and
mother of the respondent, allegation of alleged beatings by the appellant are
not proved and also, the allegation of dowry demand prior to the marriage
are, not substantiated.

28. The learned Judicial Magistrate- I at Gurgaon while disposing of
complaint under the
DV Act, vide judgment dated 02.01.2016 noted that the
brother of the respondent (PW-2) deposed that appellant had been acquitted
of the offences in case under
Section 498A IPC.

29. In the present proceedings, the appellant had got himself examined as
PW-1 and respondent examined herself as RW-1. No other witnesses have
been examined by the parties. During her cross-examination, the
respondent/RW-1 has admitted dismissal of her complaint under
Sections
498-A/
406/506 IPC and that she had not preferred any revision petition
against thereof. She also admitted that prior to appellant preferring the
petition seeking divorce on the grounds of cruelty and desertion, she had not
made any complaint against him or his family members alleging cruelty
upon her.

30. In K. Srinivas Vs. K. Sunita (2014) SLT 126, the Hon’ble Supreme
Court has held that filing of the false complaint against the husband and his
family members constitutes mental cruelty for the purpose of
Section
13(1)(ia) of the Act, 1955.

31. Further, the Supreme Court in the case of Ravi Kumar Vs. Julmidevi
(2010) 4 SCC 476 has categorically held that “reckless, false and
defamatory allegations against the husband and family members would have

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an effect of lowering their reputation in the eyes of the society” and it
amounts to ‘cruelty’. Similar observations were made by the Coordinate
Bench of this Court in the case of
Rita Vs. Jai Solanki (2017) SCC OnLine
Del 9078 and Nishi Vs. Jagdish Ram 233 (2016) DLT 50.

32. Similarly, it has been held by the Supreme Court in Mangayakarasi
Vs. M.Yuvaraj (2020) 3 SCC 786 that it cannot be doubted that in an
appropriate case, the unsubstantiated allegation of dowry demands or such
other allegations, made the husband and his family members exposed to
criminal litigation. Ultimately, if it is found that such allegations were
unwarranted and without basis and if that act of the wife itself forms the
basis for the husband to allege the mental cruelty has been inflicted on him,
certainly, in such circumstance, if a petition for dissolution of marriage is
filed on that ground and evidence is tendered before the original Court to
allege mental cruelty, it could well be appreciated for the purpose of
dissolving the marriage on that ground.

33. Also, in the present case, since the time of their marriage in the year
2004, the respondent, time and again, has spent a substantial time at her
parental home, to say that from January, 2005 till August, 2005 and
February, 2006 till March, 2007; on the grounds of preparing for her MPhil
examination. There is no doubt in marriages, especially arranged marriages,
the initial period of togetherness is crucial and important, as the newly
married couple in the process of knowing each other, develop trust and
respect and also learns to adjust in the family. Even though the observation
of the learned Family Court that respondent could get better congenial
atmosphere at her parental home to study and appear in examination but by

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leaving the matrimonial home frequently to appear in the examination, that
too for a period of more than six months, could imply as temporary
separation from husband and in-laws.

34. According to respondent due to marital discord, she had permanently
shifted to her parental house in the year 2008, even though the appellant in
the matrimonial proceedings claimed that the parties have been living
separately since the year 2005. Even if the claim of the respondent that she
was made to leave her matrimonial home in the year 2008 on the asking of
her mother-in-law to create some peaceful gap, is accepted, the respondent
has not been able to show if any efforts were made by her to return her
matrimonial home or that she had involved any friend or relative to help her
mediate with appellant or his family on this aspect. Even no application
under
Section 9 of the Hindu Marriage Act seeking Restitution of Conjugal
Rights, was made by her to join company of her husband. All this shows
that she had deliberately chosen to stay away from appellant and not to
come back to her matrimonial house.

35. The Hon’ble Supreme Court in Bipinchandra Jaisinghbhai Shah Vs.
Prabhavati 1956 SCC OnLine SC 15 has observed as under:-

“Thus the quality of permanence is one of the
essential elements which differentiates desertion
from wilful separation. If a spouse abandons the
other spouse in a state of temporary passion, for
example, anger or disgust, without intending
permanently to cease cohabitation, it will not
amount to desertion. For the offence of desertion,
so far as the deserting spouse is concerned, two
essential conditions must be there, namely, (1) the
factum of separation, and (2) the intention to

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bring cohabitation permanently to an end (animus
deserendi). Similarly two elements are essential
so far as the deserted spouse is concerned : (1)
the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the
necessary intention aforesaid.”

36. The Hon’ble Supreme Court in Bipinchandra Jaisinghbhai Shah has
further observed that once it is found that one of the spouses has been in
desertion, the presumption is that the desertion has continued and that is not
necessary for the deserted spouse actually to take steps to bring the
deserting spouse back to the matrimonial home.

37. In a recent decision in Rakesh Raman Vs. Kavita (2023) SCC Online
SC 497, the Hon’ble Supreme Court, in an appeal preferred by the husband,
challenging the order passed by the High Court whereby his petition
granting decree of divorce by the learned trial court was dismissed; observed
that:-

“16. Matrimonial cases before the Courts pose a
different challenge, quite unlike any other, as we
are dealing with human relationships with its
bundle of emotions, with all its faults and frailties.
It is not possible in every case to pin point to an
act of “cruelty” or blameworthy conduct of the
spouse. The nature of relationship, the general
behaviour of the parties towards each other, or
long separation between the two are relevant
factors which a Court must take into
consideration.”

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38. In our considered opinion, the learned Family Court has failed to take
note of the fact that the respondent had made false allegation of dowry
demand and domestic violence and thereby, committed cruelty upon the
appellant and his family members, who had to face agony of trial. We thus
consider that the appellant is entitled to decree of divorce under
Section 13 1
(ia) of the Act.

39. With aforesaid observations, the impugned judgment dated
08.09.2016 is hereby set aside and the present appeal is allowed. The
appellant is granted decree of divorce under
Section 13 1 (ia) of the Hindu
Marriage Act, 1955 on the grounds of cruelty. Decree sheet be prepared
accordingly.

40. The appeal is accordingly disposed of.

41. Pending application is disposed of as infructuous.

(SURESH KUMAR KAIT)
JUDGE

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 28, 2024
rk/r

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