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Vipin vs Bhavna Rajput on 3 December, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 08.11.2019
Date of decision: 03.12.2019

+ MAT. APP. (F.C.) 293/2019 CM APPLs. 48509-510/2019

VIPIN …..Appellant
Through: Mr. Anurag Rawat and Ms.
Meenakshi, Advocates
versus

BHAVNA RAJPUT …..Respondent
Through: None
CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MS. JUSTICE ASHA MENON

ASHA MENON, J.

1. The present appeal has been filed by the appellant/husband being
aggrieved by the judgment of the learned Family Court dated 31.08.2019,
whereby it has dismissed his petition seeking divorce from the
respondent/wife on the ground of cruelty under Section 13(1)(ia) of the
Hindu Marriage Act, 1955 (in short, ‘the Act’).

2. The facts, as set out for the purposes of deciding this appeal, are that
the parties had got married at Faridabad, Haryana on 20.11.2013, as per the
Hindu rites and customs. The parties resided together at the matrimonial
home i.e. premises No. E-284, Dakshinpuri, New Delhi whereafter they had
shifted to a rented accommodation at premises No. A-1/307, Madangir, New
Delhi. There is no child born to the parties. According to the
appellant/husband, the respondent/wife was an ill-tempered woman and had

MAT. APP. (F.C.) 293/2019 Page 1 of 8
made life hell for him. He was thus driven to seek divorce from her only on
account of her cruelty.

3. The appellant has filed for divorce on the grounds as paraphrased by
the learned Family Court in the impugned judgment, which are as follows: –

“(i) Respondent neglected to perform her matrimonial
duties such as cooking food etc;

(ii) The respondent was always found engaged on her
mobile phone with her paramour. She herself had told the
petitioner that she was in love with some other person and
relations between them had developed before her marriage
with the petitioner;’

(iii) On 17.10.2014 at about 8 p.m. there was some quarrel
upon some issue. The respondent abused the mother of the
petitioner and also kicked her in the abdomen; and

(iv) The respondent threatened to implicate the petitioner
and his mother in false criminal cases.”

4. During the trial, the appellant/husband had examined himself as
PW-1. The respondent/wife was proceeded against ex parte on 21.03.2018,
but she elected not to apply for setting aside of the said ex parte
proceedings. It is borne out from the record that by an earlier judgment and
decree dated 24.07.2018, the learned Family Court had dissolved the
marriage of the parties. This ex parte judgment was challenged by the
respondent/wife by filing MAT.APP.(F.C.) 223/2018 and by an order dated
06.02.2019, passed by a co-ordinate Bench of this Court, the said judgment
was set aside and she was granted an opportunity of cross-examining the
appellant/husband and to lead her own evidence. Subsequent thereto, the
respondent/wife had examined herself as RW-1 and her father as RW-2.

5. In the backdrop of the law laid down by the Supreme Court in a

MAT. APP. (F.C.) 293/2019 Page 2 of 8
number of cases as to what constituted cruelty [Refer: SectionParveen Mehta v.
Inderjit Mehta, (2002) 5 SCC 706, SectionSamar Ghosh v. Jaya Ghosh, (2007) 4
SCC 511, Ravi Kumar v. Julmidevi, 2010 (4) SCC 476, SectionGurbux Singh v.
Harminder Kaur, 2010 (II) DMC 706 SectionSC, K.Srinivas Rao v. D.A.Deepa,
2013 (5) SCC 226 and SectionRaj Talreja v. Kavita Talreja,
MANU/SC/0493/2017], the learned Family Court concluded that the
appellant/husband had failed to make out a case of mental cruelty by
establishing that the conduct on the part of the respondent/wife was so
negative and oppressive and of such a magnitude that it was impossible for
him to reside with her and had caused a fear in his mind for his well-being.
It also noted that the pleas taken did not meet the standards prescribed under
Rule 7 of the Delhi High Court Rules, 1967 by setting out the specific acts
of cruelty and the instances, the places and the time when such acts were
committed. The Family Court also remarked adversely on the conduct of the
appellant/husband and in the facts and circumstances of the case concluded
that he was not entitled to seek dissolution of the marriage and accordingly,
dismissed the divorce petition, as noticed above.

6. Aggrieved thereby, the present appeal has been preferred by the
appellant/husband contending that the learned Family Court has erred in not
appreciating the fact that the parties had been residing separately since
November, 2015 and almost four years had elapsed and there was no
possibility of the two residing together in the future. The judgment has been
faulted on the ground that the facts have not been properly appreciated,
namely, that the respondent/wife had kicked the appellant/husband’s mother
despite her age and her having undergone a surgical operation and the
learned Family Court had wrongly insisted on medical papers while

MAT. APP. (F.C.) 293/2019 Page 3 of 8
overlooking the fact that the police had been called and the matter was
subsequently settled through the intervention of the police on 17.10.2014.
Further, it was submitted that the learned Family Court had overlooked the
fact that in her written statement and evidence, the respondent/wife had
levelled false allegations against the appellant/husband and his family
members of having physically assaulted and abused her while, at the same
time, overlooking the fact that the respondent/wife had called his elder
sister-in-law by caste name and had otherwise also humiliated him and his
family members. Thus, it is prayed that the impugned judgment be set aside
and the marriage between the parties dissolved.

7. On going through the pleadings and the evidence led by the
appellant/husband, it is crystal clear that he has not made out any case for
divorce on the grounds of cruelty. Vague and general allegations have been
levelled that the respondent/wife had refused to perform the household
chores. No specific instances were put to the respondent/wife when she was
being cross-examined by the appellant/husband to pin-point the occasion
when she had refused to cook for him or take care of the house. Rather, in
her cross-examination, she comes across as a conventional housewife. She
had stated that she had never asked her husband about the salary that he
drew or what were his duty hours. She stated that she had not visited his
office and that she used to prepare the food whenever the appellant/husband
used to ask her. It was asked of her and she had affirmed as correct, that she
could cook non-vegetarian food, though she did not eat it, thus confirming
the fact that she used to cook food for the appellant/ husband and his family.
The respondent/wife denied the allegation that she used to wake up at 8 a.m.
after her husband served tea and would go to bed by 9 p.m., though such

MAT. APP. (F.C.) 293/2019 Page 4 of 8
facts were never pleaded nor deposed to by the appellant/husband. On the
other hand, the cross-examination of the respondent/wife establishes that she
used to get up at 5 a.m. and take her breakfast around 12-1 p.m. and partake
dinner whenever her husband used to come home i.e. around 11 in the night.
During his own cross-examination, the appellant/husband had admitted to
the fact that the respondent/wife used to do the household work when they
started living separately from his parents and there was no maid in his
mother’s house. The learned Family Court therefore rightly concluded that
these allegations of cruelty, as claimed by the appellant/husband, had no
foundation.

8. The other allegation levelled by the appellant/husband was that the
respondent/wife was perpetually on her mobile phone. But during her cross-
examination, while denying this allegation, she also deposed that she would
speak on the phone to her parents only when the talk-time was recharged by
the appellant/husband. It was not put to her during the cross-examination
that she had some other source for recharging the mobile phone talk-time
and was not dependent for this on the appellant/husband. It defies logic as to
why would have the appellant/husband paid money to recharge the mobile if
the respondent/wife was always talking on the cell-phone, ignoring her other
household work and to top it all, to enable her to keep in touch with her
alleged paramour.

9. As regards the allegation of an affair, the appellant/husband did not
even put a single question in this regard to the respondent/wife during her
cross-examination. In his own cross-examination, he had admitted that he
did not know the name of the so-called paramour and nor had he traced out
the number of any such paramour on the mobile phone. It is apparent that

MAT. APP. (F.C.) 293/2019 Page 5 of 8
such allegations were baseless and were levelled most frivolously. To her
credit, the respondent/wife had not filed even a single criminal case against
the appellant/husband or his family. She only claimed maintenance under
Section 125 Cr.P.C. and under the Protection of Women from SectionDomestic
Violence Act, 2005 and that too after the appellant/husband had filed the
divorce petition.

10. The incident of 17.10.2014, when the respondent/wife had allegedly
kicked the mother of the appellant/husband, has also not been clearly
established, as recorded in the impugned judgment and nothing material has
emerged from the testimony of the parties or any other evidence that would
show that the conclusion drawn by the learned Family Court was erroneous
in this regard. The said incident is stated to have occurred on 17.10.2014.
However, in his cross-examination, the appellant/husband admitted that on
17.10.2014, when he had called the PCR, the respondent/wife had gone to
her aunt’s house. He further admitted that the matter was compromised
between them at the police station after which the respondent/wife had gone
directly from the police station to her parent’s house at about 1/1:30 a.m.. It
was the appellant/husband who had thereafter brought the respondent/wife
directly from her parent’s house to the rented accommodation where they
stayed together for about one year. In these circumstances, the alleged
incident of 17.10.2014, even if it had occurred, is not a fact available to the
appellant/husband to seek divorce as he had condoned such an alleged act by
cohabiting with the respondent thereafter. The appellant/husband has not
mentioned that during the period of one year that the parties had lived
together at the rented house, there was any problem in the matrimonial life.

11. As regards the last plea that the respondent/wife used to threaten that

MAT. APP. (F.C.) 293/2019 Page 6 of 8
she would implicate the appellant/husband and his mother in false criminal
cases, it bears repetition that till date, no criminal case has been filed by the
respondent/wife.

12. The petition for divorce was admittedly filed by the appellant/husband
when the parties were staying together at the rented accommodation. During
his cross-examination, the appellant/husband has admitted that he had filed
this case in October, 2015, but till 21.12.2015, he had not filed the process
fee for issuance of summons to the respondent/wife. Learned counsel for the
appellant/husband has argued that it was too much to expect that the
appellant/husband would have informed the respondent/wife in writing
about filing the petition and urged that the petition could not have been
rejected on that ground. This argument does not take the appellant/husband
anywhere. Rather, it reflects upon the conduct of the appellant/husband
which shows that despite staying together, he chose to file a petition seeking
divorce from the respondent/wife without revealing his real intention, to put
an end to the matrimony and he had thereafter, shifted to his mother’s house
even though she had allegedly disowned him. Thereafter, he had ensured
that the respondent/wife would be served with the summons on 04.01.2016,
in his absence. It is only after service of the summons on her that the
respondent/wife left the matrimonial home alongwith her father to go back
to her parental home.

13. In view of the aforesaid facts and circumstances, we do not find any
error in the reasoning of the learned Family Court for declining to grant any
relief to the appellant/husband. The learned Family Court has
comprehensively assessed the evidence that has been brought on record and

MAT. APP. (F.C.) 293/2019 Page 7 of 8
we find no reason to differ with the conclusion drawn. The appeal being
meritless, is dismissed alongwith the pending applications.

(ASHA MENON)
JUDGE

(HIMA KOHLI)
JUDGE
DECEMBER 03, 2019
s

MAT. APP. (F.C.) 293/2019 Page 8 of 8

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