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Suman vs Kailash Kumar on 27 February, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 27.02.2020

+ MAT.APP.(F.C.) 29/2020 and CM APPLs. 3707-3708/2020

SUMAN ….. Appellant
Through: Mr. Mahesh Tiwari and Mr. Bishnu
Tiwari, Advocates
versus

KAILASH KUMAR ….. Respondent
Through: None

CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MS. JUSTICE ASHA MENON

ASHA MENON, J.

1. This appeal is directed against the final judgment and decree dated
31.10.2019, passed by the learned Family Court, Patiala House Courts, New
Delhi, thereby dissolving the marriage between the parties on a petition
moved by the respondent/petitioner for seeking divorce from the
appellant/respondent on the grounds of cruelty and desertion under Section
13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (in short Act).

2. The facts as are relevant for the disposal of this appeal are that the
parties were married in accordance with the Hindu rites and ceremonies on
24.11.1999, at Jaipur. After the marriage, the parties set up their matrimonial
home in Delhi. Two children, a boy and a girl were born to them, the son on
22.01.2001 and the daughter on 22.09.2002. The respondent/petitioner
alleged that the appellant/respondent had treated him with cruelty inasmuch
as her conduct was such that caused him embarrassment and sullied his

MAT.APP.(F.C.) 29/2020 Page 1 of 14
reputation and that of his family. In the course of their matrimonial life, he
found that he could not trust the appellant/respondent as she was prone to
borrow money from neighbours, strangers and even from the teachers and
other staff at the school of his children. She further mortgaged the jewellery
of his married sister with Muthoot Finance and had stealthily taken out
Rs.16,000/- from his account by using the ATM Card, without his
knowledge. There was an occasion when he had to defend the character of
the appellant/respondent. In the said episode, he even lost his teeth as his
neighbour physically assaulted him, for which an FIR was lodged.
Moreover, the respondent/petitioner found that the children had learnt to
steal money from him, upon seeing their mother do so. Though he tried to
put up with everything in order to preserve the sanctity of the marriage, the
appellant/respondent left the matrimonial home in the year 2011 and did not
care to return.

3. On the other hand, appellant/respondent contended that the
respondent/petitioner was irked with her as he had wanted only one child but
she had wanted two and had conceived the second child against his wishes
and that was the cause of differences between them. She denied that she had
ever stealthily taken his money or had mortgaged the ornaments of her
sister-in-law or had withdrawn money from her husband’s account. Instead,
she alleged that in March 2011, she had gone to her maternal home due to
the death of her uncle but thereafter, she was not allowed entry in the
matrimonial home.

4. On the basis of these pleadings, the following issues were settled by
the learned Family Court on 16.10.2019: –

MAT.APP.(F.C.) 29/2020 Page 2 of 14

a) Whether the respondent after the solemnization of the
marriage has treated the petitioner with cruelty within the
meaning of Section 13 (1) (i-a) of Hindu Marriage Act? –
OPP.

b) Whether the respondent has deserted the petitioner for a
continuous period of not less than two years immediately
preceding the presentation of the petition within the
meaning of Section 13 (1) (i-b) of Hindu Marriage Act? –
OPP.

c) Whether the petitioner is entitled to decree of divorce as
prayed for? -OPP

d) Relief.

5. The respondent/petitioner examined two neighbours and friends Ms.
Seema (PW-1) and Shri Soni (PW-2) and entered the witness box as PW-3,
while the appellant/respondent examined herself as RW-1. The learned
Family Court analysed the evidence and the material that had come on
record and concluded that the respondent/petitioner had successfully proved
that he had been subjected to cruelty within the meaning of Section 13-1(i-a)
and had also been deserted within the meaning of Section 13(1) (i-b) of the
Act. For coming to the said conclusion, the following facts were noted by
the learned Family Court:

a) The appellant/respondent had hidden the fact of a second
conception from her husband and returned to the matrimonial home
only for the purpose of delivery of the second child leaving behind
the first born child who at that time, was about two and half years
old. The learned Family Court observed that she had done so only to
‗defeat the will of the petitioner (husband) to have only one child’,
though there would have been more polite ways of convincing the

MAT.APP.(F.C.) 29/2020 Page 3 of 14
husband as the marriage is founded on mutual respect and trust. It
was concluded that this conduct of the appellant/respondent
amounted to causing mental cruelty to the respondent/petitioner.

b) Despite her own allegations that she had been thrown out of the
matrimonial home by the respondent/petitioner, the appellant/
respondent had not made any effort to reach out to her children by
seeking their custody or at least claiming visitation rights. The
learned Family Court concluded the decision of the appellant/
respondent to leave her young children aged 10 years and 8 years at
the matrimonial home, to live at her parental home was cruelty not
only upon the respondent/petitioner, but also upon the children.

c) The evidence brought on record established that without the
knowledge of the respondent/petitioner, the appellant/respondent had
pawned 1 Kg silver and gold ornaments belonging to the respondent/
petitioner, his mother and his married sister with Muthoot Finance
and some local Jewellers and the respondent/petitioner had to pay
about Rs.53,000/- to get the same released. The learned Family
Court concluded that this was definitely an act causing mental
cruelty to the respondent/petitioner as it had created a great
embarrassment for him and his family members and could have
spoiled the matrimonial life of his married sister if he had not been
unable to get the jewellery released and returned to her.

d) Despite failing to prove that the respondent/petitioner was
denying her any pocket money or that she was kept in want by him
and his mother, the appellant/respondent was habitually borrowing
money from all and sundry including Shri Amrit Lal, Shri G.S.

MAT.APP.(F.C.) 29/2020 Page 4 of 14

Pandey, Shri Soni, School teachers, staff and even the peons at the
school of the children, causing a huge embarrassment to the
respondent/petitioner as also to the children as the lenders demanded
repayment from them. The learned Family Court held that such acts
bring down the reputation of a person in the society and no
reasonable person could be expected to live with such repeated
behaviour of an erring spouse.

e) In the year 2009, the appellant/respondent had stolen the ATM
card of the respondent/petitioner at 6 AM in the morning when he
was sleeping and had withdrawn a sum of Rs.16,000/- from his bank
account without his knowledge. He came to know of it only when he
had the occasion to withdraw money from the ATM. Only on his
threatening that he would lodge a complaint with the police and the
identity of the person would be revealed through the CCTV footage,
did the appellant/respondent admit to having withdrawn the said
amount. The learned Family Court concluded that such conduct of
any spouse would create suspicion and distrust and though the act
may have been condoned by the respondent/petitioner since the
parties had continued to reside together till March 2011, repetition of
similar behaviour subsequently, was sufficient to establish cruelty.

f) Finally, the fact that the children had also stolen money from
the drawer of the respondent/petitioner by using the nail cutter just as
the appellant/respondent had done to remove money was also a
factor that weighed against the appellant/respondent.

6. In the totality of all such conduct, the learned Family Court concluded

MAT.APP.(F.C.) 29/2020 Page 5 of 14
that the respondent/petitioner was entitled to divorce from the
appellant/respondent on the ground of cruelty.

7. With regard to the plea of desertion, the learned Family Court
observed that the appellant/respondent had left the respondent/petitioner in
the month of March 2011 and though she contended that she had made
efforts to reconcile, the said claims were not convincing. Thus, the learned
Family Court concluded that the respondent/petitioner had proved that he
had been living separately from the appellant/respondent for over two years
as she had deserted him with no intention to join him thereby bringing
cohabitation to an end, without there being adequate cause and further,
without his consent.

8. Aggrieved by the said decision of the learned Family Court to
dissolve the marriage between the parties, the appellant/respondent has filed
the present appeal contending that the evidence has not been properly
considered, Mr. Tiwari, learned counsel for the appellant/respondent
submitted that admittedly, the respondent/petitioner had wanted only one
child whereas she wanted two children; that the learned Family Court had
ignored the testimony of the appellant/respondent that she had not been
allowed to join the matrimonial home and the respondent/petitioner had not
attended her phone calls; that she had lived with the respondent/petitioner
happily till the year 2013 and the divorce petition having been filed by her
on 29.07.2013, could not have been allowed on the ground of desertion as
there was no evidence of desertion for two years immediately preceding
filing of the petition. With regard to cruelty, it was contended that no
abusive or violent conduct on the part of the appellant/respondent had been
brought on record.

MAT.APP.(F.C.) 29/2020 Page 6 of 14

9. Lastly, it was contended on behalf of the appellant/respondent that the
learned Family Court has overlooked the clear statement made by her during
her cross-examination to the effect that she did not wish to give divorce to
the respondent/petitioner and she desired to stay with him for the sake of her
children and herself and that she had also filed a petition under Section 9 for
restitution of conjugal rights registered as Case No.82/2018. According to
the appellant/respondent the parties have resided happily together for 13
years and the divorce was only on account of the egoistical nature of the
respondent/petitioner who is a gazetted officer being a M.A., LL.B while she
was only 8th class pass. It is her case that the decree of divorce has resulted
in gross miscarriage of justice.

10. Having heard the learned counsel for the appellant/respondent and on
perusing the evidence and the material brought on record before the learned
Family Court, which record has been requisitioned and examined, we find
no force in the pleas taken by learned counsel for the appellant/respondent.
Even if it is accepted that there is some reference to purported acts of cruelty
in September 2011 in the evidence led by the parties, casting some doubt on
the date when the appellant/respondent had left the matrimonial home, the
appellant/respondent had herself claimed in the written statement that she
had left Delhi in March 2011 and according to her, was not permitted to
return to the matrimonial home. The petition for divorce was filed by the
respondent/petitioner on 27.09.2013. Therefore, nothing much turns on this.
There is no proof brought on record to establish that the parties had
cohabited till the year 2013 to debar the filing of the petition on the ground
of desertion.

11. More importantly, there is sufficient evidence to establish that the

MAT.APP.(F.C.) 29/2020 Page 7 of 14
conduct of the appellant/respondent was far removed from decency and in
addition, was resulting in the children going astray. The evidence by way of
his affidavit (Ex.PW-3/1) of the respondent/petitioner who appeared as
PW-3 sets out several instances when the appellant/respondent had
borrowed money from the shopkeepers/neighbours/school staff, etc. and of
mortgaging valuables, resulting in surprise demands of repayment being
sprung on him left, right and centre. The cross-examination of PW-3 has not
shaken the credibility of his version.

12. On the other hand, in the affidavit by way of evidence filed by the
appellant/respondent, she has glossed over all these assertions made by the
respondent/petitioner and baldly denied having taken loans or withdrawing
cash without the permission of the respondent/petitioner or mortgaging
silver and gold belonging to her sister-in-law or mother-in-law. Nowhere has
she denied that she did not know PW-1 Seema, or PW-2 Sonu, both of
whom have been examined by the respondent/petitioner to prove that the
appellant/respondent had taken the gold ornaments from the sister of the
respondent/petitioner and had mortgaged them with Muthoot Finance
Company in the presence of PW-1 and had used the ATM card of the
respondent/petitioner to withdraw money from his account and had handed
over the said amount of Rs.16,000/- to PW-2. A perusal of the cross-
examination of PW-3, i.e. the respondent/petitioner clearly establishes that
the conclusions drawn by the learned Family Court cannot be faulted.

13. There does not appear to be any dispute that the appellant/respondent
had left the matrimonial home in the year 2002, without disclosing to the
respondent/petitioner that she was pregnant and even when the
respondent/petitioner used to talk to her, initially she did not even disclose to

MAT.APP.(F.C.) 29/2020 Page 8 of 14
him that she was pregnant. It was the mother of the respondent/petitioner
who brought her back to Delhi when she was 8 months pregnant and a
daughter was born at Mata Chanan Devi Hospital, Janakpuri. Thus, for
several months, the appellant/respondent left her two year old son with the
respondent/petitioner, his parents and sister. She had left her matrimonial
home without even informing the respondent/petitioner and it was his
parents, who had told him so. The conduct of the appellant/respondent in
failing to inform the respondent/petitioner of such an important event in
their lives, is nothing but cruelty, particularly when the husband did not
want a second child. Despite this the respondent/petitioner has taken
absolute care of both the children, whereas the appellant/respondent who
wanted two children, left them to their fate.

14. The respondent/petitioner has also testified to the character
assassination of his young sister by the appellant/respondent that almost
pushed his sister to commit suicide. Though these facts were elicited during
his cross-examination, there has been no contradiction of such statements
made by the respondent/petitioner.

15. Admittedly, one Shri Yudhveer Singh Negi used to visit the
appellant/respondent at the matrimonial home; one Shri Amrit Lal, who had
a watch repair shop in INA Market, was known to the appellant/respondent
as the children had duly informed their grandmother about the fact that they
were paid some money by the said Amrit Lal with which they bought toys,
while leaving their mother to converse with him. The respondent/petitioner
has also testified that the said Amrit Lal had visited his house under the
influence of alcohol when the children were about 9 and 11 years old,
demanding return of money from the appellant/respondent.

MAT.APP.(F.C.) 29/2020 Page 9 of 14

16. Again, there is no reason for the court to doubt the testimony of the
respondent/petitioner, that on 02.03.2009, the appellant/respondent had
tactfully obtained the PIN number of his ATM card around 10 PM which he
had revealed to her as implicit trust was important between the spouses but
the result was that around 6 AM on the next morning, the
appellant/respondent had stealthily withdrawn Rs.16,000/- in two
transactions of Rs.10,000 and Rs.6,000 and had returned the ATM Card in
the purse of the respondent/petitioner, while he was still asleep.

17. Having glossed over this misdemeanour on the part of his wife at that
time, the respondent/petitioner was faced with the need to release the family
jewellery from Muthoot Finance in February, 2012 which was after the
appellant/respondent had left the matrimonial home when he had learnt from
his sister that the appellant/respondent had taken one kg of Silver from the
neighbour and 27.5 grams of gold from her to pawn it with Muthoot
Finance, and some local jewellers at Kotla Mubarakplur. The
respondent/petitioner had to pay a sum of Rs.52,892/- against receipt (Ex.
PW-3/E) to Muthoot Finance, which was issued in the name of PW-1, Smt.
Seema, who has testified in court that she had provided the identity papers
for the purposes of taking a loan from Muthoot Finance. PW-1 has testified
to having accompanied the appellant/respondent to her sister in law’s house
to collect the jewellery from her and had gone straightaway to Muthoot
Finance for mortgaging the same. The mother of the respondent/petitioner
has also fully supported her son on all these facts. It is also to be noted that
in the affidavit of evidence (Ex.PW-3/1), the respondent/petitioner had
stated as under: –

MAT.APP.(F.C.) 29/2020 Page 10 of 14

―20. That the respondent had even taken loans from the
teachers, sweeper and watchman of the school of the
children and the said persons used to harass the children by
asking them for repayment of the loans taken by the
respondent and the deponent has many times made payments
to the aforesaid persons for the loan taken by the
respondent. It is submitted that the respondent has not even
left her children from harassment. Deponent requested the
principal of the school that no staff of the school will ask for
money from children. If some amount is to be paid, the
deponent is ready to pay the amount taken by the respondent.
Principal of the school assured the deponent that this will not
happen in future again. Deponent observed that the academic
performance of both the kids were decreasing day-by-day
and the behaviour of both the kids were very strange, sad,
cheerless, distressing, etc. The deponent finally got them
admitted in new school. This action of the deponent did not
work immediately but took at least six months to perform
better in their academic as well as sports.

21. That the respondent was having a habit of stealing
things and money from the house of the deponent and
everything had come in the knowledge of the children and
once upon a time the children also had stolen Rs.1000/- from
the deponent purse, which remains locked in drawer of bed
by adopting the same method as was adopted by the
respondent on earlier occasion, i.e., unlocked the drawer
with the help of nail-cuter, as was disclosed by the children
before the deponent. ‖
(emphasis added)

18. No question was put to the respondent/petitioner during his cross-
examination to challenge the aforesaid statements.

19. The constant strain to which the respondent/petitioner was being
subjected on account of the conduct of the appellant/respondent, is evident
from his testimony. Cruelty is no doubt, not measurable as a tangible

MAT.APP.(F.C.) 29/2020 Page 11 of 14
commodity, but the standard for determining as to whether a particular
conduct amounts to cruelty or only to normal wear and tear of marriage, has
been the subject matter of several decisions of the Supreme Court. In this
context, the learned Family Court had rightly relied on the observations of
the Supreme Court in N.G. Dastane (Dr) v. S. Dastane, (1975) 2 SCC 326,
which reads as follows: –

“30. An awareness of foreign decisions could be a useful
asset in interpreting our own laws. But it has to be
remembered that we have to interpret in this case a specific
provision of a specific enactment, namely, Section 10(1)(b) of
the Act. What constitutes cruelty must depend upon the terms
of this statute which provides:

―10. (1) Either party to a marriage, whether
solemnized before or after the commencement of this
Act, may present a petition to the District Court
praying for a decree for judicial separation on the
ground that the other party–

(b) has treated the petitioner with such cruelty as to
cause a reasonable apprehension in the mind of the
petitioner that it will be harmful or injurious for the
petitioner to live with the other party;‖
The inquiry therefore has to be whether the conduct charged
as cruelty is of such a character as to cause in the mind of
the petitioner a reasonable apprehension that it will be
harmful or injurious for him to live with the respondent. It is
not necessary, as under the English law, that the cruelty must
be of such a character as to cause ―danger‖ to life, limb or
health or as to give rise to a reasonable apprehension of such
a danger. Clearly, danger to life, limb or health or a
reasonable apprehension of it is a higher requirement than a
reasonable apprehension that it is harmful or injurious for one
spouse to live with the other.‖
(emphasis added)

MAT.APP.(F.C.) 29/2020 Page 12 of 14

20. The observations of Supreme Court in V. Bhagat vs. Mrs. D. Bhagat,
AIR 1994 SC 710, as cited by the learned Family Court in para 32 of the
impugned judgment, are equally apposite:

―16. Mental cruelty in Section 13(1)(i-a) can
broadly be defined as that conduct which inflicts upon the
other party such mental pain and suffering as would make
it not possible 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 petitioner. While arriving at such
conclusion, regard must be had to the social status,
educational level of the parties, the society they move in, the
possibility or otherwise of the parties ever living together in
case they are already living apart and all other relevant
facts and circumstances which it is neither possible nor
desirable to set out exhaustively. 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. If it is a case of accusations and
allegations, regard must also be had to the context in which
they were made.‖
(emphasis added)

21. In the present instance, the respondent/petitioner has shown great
forbearance and tolerance and had even tried to protect the appellant/
respondent when his neighbour questioned her character and an FIR was
lodged by him at Police Station Sarojini Nagar, having lost his teeth in a
fight for the honour of the appellant/respondent who at that time, was his

MAT.APP.(F.C.) 29/2020 Page 13 of 14
wife. But such valour seems to have been lost on the appellant/respondent as
she continued with her unacceptable conduct. The respondent/petitioner is a
gazetted officer and entitled to a certain respectable status in society. The
family honour was being repeatedly compromised by the
appellant/respondent, the pain would have been doubly felt by the
respondent/petitioner as the children were being adversely affected by the
conduct of the appellant/respondent. The conduct of the appellant/
respondent was such that a genuine and reasonable apprehension would
have arisen in the mind of the respondent/petitioner that it would be harmful
and injurious for him to continue to live with her. The continuous mental
pain and suffering caused to the respondent/petitioner on account of the
public embarrassment because of the obnoxious conduct of the
appellant/respondent, impacting his social status was such that it could not
be expected that he could continue living with her any longer.

22. In the light of the foregoing discussion, we do not find any reason to
interfere with the impugned judgment which is upheld. The present appeal is
dismissed as meritless alongwith the pending applications. Trial Court
Record be returned forthwith.

(ASHA MENON)
JUDGE

(HIMA KOHLI)
JUDGE
FEBRUARY 27th, 2020
pkb/s

MAT.APP.(F.C.) 29/2020 Page 14 of 14

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