it enables the opposite party to specifically meet, verify, and if necessary,
challenge/deny the averments/ allegations. Otherwise, the opposite party
would remain in the dark and would not be able to effectively deal with the
accusations, allegations and averments made against him/her.
30. Apart from making the aforesaid specific allegations, the respondent
also made general allegations in his petition with regard to the alleged
general conduct and behaviour of the appellant. It may not always be
possible for a party to make specific allegations with regard to the date,
time, place of occurrence in relation to a generalized conduct, act or
omission – where such conduct is repeated continuously over a period of
time. Thus, the allegations that the appellant used to call the respondent
‘Hathi’ or ‘Mota Hathi’, cannot be given a particular date, time or place of
utterance as, according to the respondent, such an utterance was repeatedly
made by the appellant. Similarly, it may not be possible to give specific
dates and times in relation to the allegations that the appellant denied sex to
the respondent consistently. When two parties are in a marital relationship,
neither is expected to maintain a logbook and note down therein each and
every instance of matrimonial offence committed by the other. When the
allegation is that a party showed uncooperative attitude towards his/her
spouse and family members; did not show respect to the other spouse and
his family members; misbehaved and abused with the opposite party and his
family members – in respect of such allegations, it may not be possible to
plead a specific date, time or place of occurrence. However, when
intolerable conduct/matrimonial offence manifests itself into an incident
which has larger proportions, the aggrieved party would be able to pin
pointedly – with particulars and details, recite and establish such
matrimonial offence.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 22.03.2016
MAT. APP. 68/2012
SA ..... Appellant
versus
AA ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
Citation: 2016 (3) ALLMR(JOURNAL)60
1. The present appeal under Section 28 of the Hindu Marriage Act
(HMA) is directed against the judgment and decree dated 20.10.2012 passed
by the learned ADJ (East), Karkardooma Courts, Delhi in HMA
No.323/2010 preferred by the respondent/husband against the
appellant/wife. By the impugned judgment, the learned ADJ decreed the
petition preferred by the respondent/husband under Section 13(1)(ia) of the
HMA against the appellant/wife, thereby holding that the MAT.APP. 68/2012 Page 2 of 31
respondent/husband has been subjected to cruelty by the appellant/wife,
which were found to be grave and weighty. Consequently, the marriage
between the parties was dissolved by a decree of divorce.
2. The parties were married at Delhi on 03.02.2005. One male child was
born out of the wedlock on 30.12.2005. The allegations of the respondenthusband
and the counter allegations of the appellant-wife are set out in the
impugned judgment and the same are, therefore, not being reproduced
herein.
3. The learned ADJ framed the issue whether the appellant/wife had
treated the respondent/husband with cruelty after the solemnization of the
marriage. In support of his case, the respondent/husband examined himself
as PW-1. He also produced one Sh. PM as PW-2, who lives in the
neighbourhood of the matrimonial home. On the other hand, the appellant
examined herself as RW-1. The respondent/ husband/PW-1 deposed on the
lines of his allegations made in the petition is his examination-in-chief on
affidavit. The learned ADJ observed that he was not cross examined about
the several incidents constituting the infliction of physical and mental
cruelty upon him, on which the respondent had deposed in his examinationin-chief.
4. The learned ADJ proceeded on the basis that the appellant had neither
cross examined the respondent about the incidents, nor given any
suggestions to him that he was deposing falsely and thus, the same could be
safely accepted as true. He held that since the appellant had not contradicted
the alleged acts of cruelty, and the testimony of the respondent/husband had MAT.APP. 68/2012 Page 3 of 31
not been impeached, he could assume that the alleged acts of cruelty are
true. While appreciating the evidence of the appellant/wife, the learned ADJ
observed that the appellant sought to place reliance on medical records and
medical prescriptions. However, she did not examine the author/doctor of
the said record. She also did not examine any of the eye witnesses to the
incidents which she had claimed were witnessed by many people. She did
not even examine her parents, who were also allegedly witnesses to several
incidents narrated by her. The learned ADJ held the testimony of the
appellant lacks credibility and was, thus, held to be unbelievable.
5. The acts and incidents of cruelty attributed to the appellant, in respect
of which the learned ADJ examined-whether they constituted cruelty as
understood in law, are the following:
a) giving repeated threats to commit suicide, and even trying to
commit suicide. On one occasion, the appellant brought one filled
kerosene can and opened its lid, but the respondent and neighbours
stopped her from doing so;
b) forcibly pushed the penis and testicles of the respondent, due to
which the respondent received injuries and swelling on his private
parts;
c) repeatedly slapping the respondent on various occasion;
d) taunting the respondent that he is nothing, and he can do
nothing, and also he cannot satisfy her;
e) never allowing the respondent to meet with the minor child;MAT.APP. 68/2012 Page 4 of 31
f) insulting and misbehaving with the respondent and his family
members;
g) leaving the matrimonial home without informing the
respondent, and on asking abusing and quarrelling with the
respondent;
h) always quarreling with the respondent and abusing him;
i) refusal to have sex with the respondent;
j) forcing the respondent for the transfer of his property in her
name.
6. The learned ADJ held that the respondent/ husband had established
the ground of cruelty to seek a decree of dissolution of marriage between the
parties.
7. The first submission of Mr. Mehta, learned counsel for the appellant
is that the appellant/wife had been thrown out from the matrimonial home
on 07.05.2006 and that she had not left her matrimonial home on her own.
Mr. Mehta submits that the learned ADJ has laid undue emphasis on the fact
that PW-1 and PW-2 – though cross examined, were not given suggestions
by the appellant that the said PWs were deposing falsely. Mr. Mehta
submits, that the appellant having categorically denied all the allegations
made against her by the respondent/ husband in her written statement, it was
not necessary for the appellant to formally give suggestions to the PWs with
regard to each of the allegations made by them against the appellant. He
submits that the said failure is not fatal to the case of the appellant, as the MAT.APP. 68/2012 Page 5 of 31
onus to prove the allegations of cruelty lay upon the respondent/petitioner in
the divorce proceedings. In this regard, Mr. Mehta has placed reliance on
Sher Mohammad v. Mohan Magotra, 202 (2013) DLT 708, where this
Court has, inter alia, held:
“20. As far as the finding of the learned Additional District
Judge, of there being no Agreement to Sell is concerned, I tend
to agree therewith. The appellant / plaintiff in the present case
has utterly failed to prove the availability with himself of the
amount of Rs.4,25,000/- paid in cash. Though in the evidence
on record, there is a reference to a passbook of a bank account
of the appellant / plaintiff having been produced during the
course of the cross examination but the senior counsel for the
appellant fairly admits that the said passbook does not justify
the availability of Rs.4,25,000/- with the appellant. As far as the
argument of suggestion having not been given to PW2 is
concerned, I may mention that the tenor of the entire cross
examination by the respondent of PW2 is to challenge his
statement; though of course no specific suggestion is given that
he has lied on the aspect of payment of Rs.4,25,000/- in cash in
his presence. However, I am of the opinion that in a civil
trial which is based on pleadings, there is no need for such
suggestions to be given. The respondent in his written
statement had already denied the said payment and it was for
the appellant to prove the same. The practice of giving
suggestions in cross examination to witnesses is of criminal
trials where there are no pleadings and the defence is built up
by giving such suggestions. However unfortunately the said
practice of criminal trials has crept into the civil trials also to
the extent that most of the cross examinations being in the
form of suggestions alone and which take considerable time.
The purport of cross examination is to challenge the
testimony and / or to falsify the witness or his credit
worthiness and not to give suggestions to the effect that each
and every deposition in examination-in-chief is false.
Similarly, a party in a civil trial is not required to in cross
examination put its case to the witness as the same as MAT.APP. 68/2012 Page 6 of 31
aforesaid already exists in the pleadings”.
[emphasis supplied]
8. He has also placed reliance on Suman Singh v. Sanjay Singh, 200
(2013) DLT 638 (DB). I may observe that this decision was relied upon by
the respondent and in his rejoinder submissions, Mr. Mehta has also sought
to place reliance on the aforesaid decision. Mr. Mehta points out that in this
decision as well, the Trial Court had proceeded on the basis that the counsel
appearing for the wife had failed to put forward her case to the husband in
his cross examination, and had failed to give suggestions to him regarding
number of allegations leveled against her by him in his examination in chief.
The Trial Court had proceeded on the basis that the said failure constitutes
an admission by the wife with regard to the correctness of the allegations of
cruelty leveled against her by the husband. The Division Bench, in para 23,
observed that:
“23. The aforesaid approach adopted by the Trial Judge is too
narrow and pedantic. It is true that the cross-examination of
Sanjay by the counsel acting for Suman is most unsatisfactory
because with respect to numerous incidents deposed to by
Sanjay the counsel has not even bothered to even suggest that
the same are untrue. But, human relations have not to be
severed due to level of advocacy falling below acceptable
standards. In an adversarial litigation, which we follow in
India, if a Judge were to find that a counsel’s standard has not
reached the desired level and the litigation ceases to be
adversarial, the Judge must step in. We often use the phrase
that a Judge is a match referee. We do not use the phrase that
the Judge is an umpire. Now, an umpire has a static position as
in the game of cricket. But a referee, as is to be found in a game
of football, runs up and down in the field keeping a hawk’s eye
on the football to ensure that nobody fouls”.MAT.APP. 68/2012 Page 7 of 31
9. The further submission of Mr. Mehta is that the allegations made by
the respondent in the divorce petition are completely vague and without any
specifics. He submits that such vague and non-specific allegations can
never form the basis of the petition seeking divorce on the ground of cruelty
as specific instances of alleged cruelty with dates, time and particulars are
required to be made. Non-specific and vague allegations are incapable of
being met or denied and thus, cannot be acted upon by the Court.
10. Mr. Mehta has placed reliance, in support of the aforesaid proposition,
on Neelu Chopra v. Bharti, (2009) 10 SCC 184. In this case, the Supreme
Court was dealing with an appeal against a judgment of the High Court
dismissing a petition for quashing of criminal proceedings against the
appellant under Section 406, 498A,114 of IPC. The supreme Court, inter
alia, observed:
“7. … … There is undoubtedly some reference to the present
appellants, but what strikes us is that there are no particulars
given as to date on which the ornaments were handed over, as
to the exact number of ornaments or their description and as to
the date when the ornaments were asked back and were
refused. Even the weight of the ornaments is not mentioned in
the complaint and it is a general and vague complaint that the
ornaments were sometime given in the custody of the appellants
and they were not returned. What strikes us more is that even in
paragraph 10 of the complaint where the complainant says that
she asked for her clothes and ornaments which were given to
the accused and they refused to give these back, the date is
significantly absent…. ….
… … …
11. The High Court has merely mentioned that the allegations
in the complaint are of retaining jewellery articles in MAT.APP. 68/2012 Page 8 of 31
possession of the husband and the petitioners. Now if the
articles were in the possession of the husband, there is no
question of the present appellants being in possession of the
jewellery. This is apart from the fact that it has already been
expressed by us that there is no mention of the date on which
the said ornaments, if any, were entrusted to the appellants or
even the date when they were demanded back and were refused
to be given back by the appellants or any one of them. Insofar
as the offence under Section 498A IPC is concerned, we do not
find any material or allegation worth the name against the
present appellants…. ….”.
11. Similarly, a Division Bench of this Court in State of NCT of Delhi v.
Rakesh, 2012 (2) JCC 1334, while dealing a criminal leave to appeal
petition against acquittal of the respondent under Section 304B, 406, 498A
and 34 IPC, observed that:
“8. The witnesses did not give specific dates when any
specific dowry article was demanded by any particular
accused. Allegations levelled by them are vague and general in
nature. There is no direct, clinching and legal evidence against
them in respect of cruelty under Section 498A. …..
9. … … ….
10. The evidence led in this case is lacking in details about
the cruel treatment meted out to the deceased by the accused in
connection with the dowry demands. Nothing has emerged that
there were persistent and unabated dowry demands and she
was physically or mentally tortured on her failure to fulfil them.
So far as allegations against the respondents were concerned,
these were omnibus in nature and had been made without any
specific instances in order to involve the entire family and that
too after the death of the deceased”.
Thus, the Division Bench dismissed the leave petition preferred by the MAT.APP. 68/2012 Page 9 of 31
State.
12. Mr. Mehta further submits that the learned ADJ has adopted a
different yardstick when it came to appreciation of evidence of the parties.
He submits that the fact that the appellant had failed to produce other
witnesses, including her parents, was taken as a circumstance to infer lack of
credibility in the averments of the appellant, rendering them unbelievable.
In para 50 of the impugned judgment, the learned ADJ observed as follows:
“50. The respondent has also stated in the cross examination
that the incidents was witnessed by many people. She has
named them in particular besides her parents. However, the
respondent has chosen not to examine any of the said witnesses
in support of her case. The totality of the circumstances shows
that there is lack of creditability in the averments of the veracity
of the respondent and thus the same cannot be believed”.
13. However, the similar failure on the part of the respondent/husband to
lead evidence of his parents and other family members in support of his
allegations, or of the medical doctor in support of his alleged injury suffered
on his private parts allegedly caused by the appellant, has not been looked
upon with suspicion and the case of the appellant has been accepted as the
gospel truth.
14. Mr. Mehta submits that in Suman Singh (supra), the Division Bench
found a similar infirmity in the judgment of the Trial Court in that case and
observed as follows:
“24. A closer look at the impugned judgment would reveal
that the learned Trial Judge had adopted different yardsticks
while appreciating the evidence led by the parties. In case of MAT.APP. 68/2012 Page 10 of 31
Sanjay, his sole testimony has been held to be sufficient by the
leaned Trial Judge on the ground that “to seek a corroboration
to a fact alleged by a spouse to a marriage regarding the
healthy or unhealthy character of their intimate relation which
belongs to the sacred and secrets precincts of marital life, and
which are known only to the spouses and which are not
supposed to be known to any other living soul on the surface of
the planet, would amount to shutting one’s eye towards the
facts of life and reality”. On the other hand, an adverse
inference has been drawn against Suman for not examining her
family members to disprove allegations leveled by Sanjay that
he was not treated properly by family members of Suman
whenever he went to her parental house. One of the allegations
leveled by Suman against Sanjay was that the family members
of Sanjay used to misbehave with her and instigate Sanjay to
treat her with cruelty since they did not approve of their
marriage. The learned Judge has not drawn an adverse
inference against Sanjay who has likewise not produced his
parents to rebut the same.
25. As observed by us in the preceding paras, a pragmatic
approach and not a pedantic one is required while dealing with
matrimonial disputes. The Trial Judge has dealt with the
evidence led by the parties in a very superficial manner”.
Thus, he submits that the impugned judgment is patently laconic and
cannot be sustained.
15. On the other hand, the submission of learned counsel for the
respondent/ husband is that the charge of cruelty leveled by the respondent
against the appellant was completely established before the Trial Court.
Learned counsel submits that in matrimonial disputes, the acts of cruelty,
particularly concerning private affairs such as the physical relationship
between the parties are extremely private matters, to which, for obvious
reasons, even the close family members are not likely to be witness and MAT.APP. 68/2012 Page 11 of 31
privy. Thus, in respect of such allegations, it would be the testimony of the
parties which would be of relevance, and the same would have to be
weighed in the context of other surrounding facts and circumstances.
16. Learned counsel submits that the learned ADJ has referred to and
relied upon several decisions including the decisions of the Supreme Court,
which lays down the age old rule that if the correctness of a statement of a
witness is not disputed or challenged in his cross examination, the Court
may safely accept the statement of the witness as true.
17. Learned counsel submits that the decision of this Court in Sher
Mohammad (supra) relied upon by the appellant is of no avail to the
appellant, as in the cross examination of the respondent RW-1 and of RW-2,
not only the appellant failed to challenge the correctness and veracity of
their statements made in their examination-in-chief, but the appellant also
did not conduct any cross examination so as to challenge or falsify the
testimony, or its credit worthiness. He further submits that the said decision
does not take into account the decisions relied upon by the learned ADJ,
namely:
i) Rajinder Pershad (D) by LRs. v. Darshana Devi, (2001) 7
SCC 69;
ii) State of U.P. v. Nahar Singh (D) & Ors., (1998) 3 SCC 561;
iii) Srichand and Shivan Das v. The State, (1985) 28 DLT 360.
18. He submits that Section 138 and 146 of the Evidence Act are
applicable with equal force to civil and criminal proceedings and, thus, the MAT.APP. 68/2012 Page 12 of 31
distinction drawn by the Court between civil and criminal cases in Sher
Mohammad (supra) may be non-existent. In any event, since there are
Supreme Court decisions on the proposition that the unchallenged testimony
of a witness can safely be relied upon, this Court is bound to follow the
decisions of the Supreme Court over and above the decisions of a coordinate
bench of this Court, which has not alluded to the earlier decisions, including
those of the Supreme Court.
19. Learned counsel has also placed reliance on Suman Singh (supra). In
para 45 of the said decision, the Court observed that the nature of proof
required in matrimonial matters is different. The facts alleged by a spouse
about their private intimate life are not supposed to be known to any other
person and no corroboration can be expected in such cases. To seek
corroboration to a fact alleged by a spouse to a marriage regarding the
healthy or unhealthy character of their intimate relation-which belongs to the
sacred and secrets precincts of marital life, and which are known only to the
spouses and which are not supposed to be known to any other living soul on
the surface of the planet, would amount to shutting one’s eye towards the
facts of life and reality. Corroboration, therefore, to the version of either
spouse can hardly be expected to come from any other independent source.
Such matters are always decided on preponderance of probabilities. The
Division Bench in para 45 of the judgment in Suman Singh (supra) referred
to the earlier decision reported as A v. B, 1985 MLR 326 in this regard.
20. Learned counsel submits that the learned ADJ has exhaustively
analysed and appreciated the evidence led by both the parties before
reaching to the conclusion that the appellant had subjected the respondent to MAT.APP. 68/2012 Page 13 of 31
cruelty.
21. Having heard learned counsels for the parties, perused the impugned
judgment and the evidence brought on record, as well as examined the
decisions relied upon by the parties, I am of the view that there is no merit in
the present appeal calling for interference with the impugned judgment and,
consequently, the appeal is liable to be dismissed.
22. At the outset, I may observe that one of the submissions of the
appellant/ wife before the Trial Court was that the allegation of cruelty on
account of infliction of physical injury on the private parts of the respondent
stood condoned, as the said incident was stated to have taken place on
11.02.2005, whereas, admittedly, the appellant had delivered a male child on
30.12.2005. Thus, the parties had continued to cohabit as husband and wife
even after 11.02.2005, as the child was conceived sometime in March 2005.
23. The learned ADJ has, in the impugned judgment, considered the
meaning of ‘condonation’ in the context of a matrimonial offence by placing
reliance, inter alia, on Dastane v. Dastane, AIR 1975 SC 1534, and the
decisions of this Court in Dr. Seema v. Dr Akhilesh Chaudhary, 177 (2011)
DLT 537, wherein it has been observed that the condonation itself is
conditional upon the condition that the offending spouse does not commit
further matrimonial offence after condonation has taken place. Further
matrimonial offence would revive the earlier offence, which may have been
condoned so as to give a cause of action to the aggrieved spouse to base his
petition seeking dissolution of marriage on the earlier condoned act of
cruelty/ matrimonial offence. On this aspect, neither party has advanced any
submissions. Even otherwise, the reasoning adopted by the learned ADJ on
the said aspect is sound and does not call for interference.
24. In the present case, the respondent /husband made specific allegations
of cruelty against the appellant/ wife apart from making several generalized
statements. He specifically alleged that the appellant used to call him
‘Hathi’ or ‘Mota Hathi’. He also specifically alleges that on the night of
11.02.2005, the appellant pushed the penis and testicles of the respondent at
the time when he wanted to have intercourse with the appellant, due to
which he received injuries and swelling on his private parts. Moreover, he
specifically attributed to the appellant statement to the following effect:
“YEH TERE LIYE NAHIN HAIN KYONKI TERE BASKI MERE
PYAAS MITANI NAHI HAI MOTE HAATHI APNA WAJAN
KUCH KAM KAR AUR MUJHEY SATISFIED KAR JAB TERE
BASKI KUCH NAHI THA TOH SHADI KYO KARI THI”.
He deposed in his examination-in-chief on the same lines.
25. The respondent specifically averred with regard to the incident which
transpired on 28.06.2006 in para 10 of his petition, wherein he stated:
“10. That on 28.06.2006 the petitioner since was living in
great tension requested the respondent to give the child to him
but inspite of giving the child, the respondent slapped the
petitioner and asked to leave the house as the respondent had
already turned down the other family members from the house.
It is submitted that the petitioner requested the respondent to
keep on cooling her mind but she started infuriated and started
trying loudly by abusing the petitioner and stated that she
would put herself to fire and would involve the entire family
members in the dowry death case and in this process the
respondent brought one filled kerosene can and opened its lid MAT.APP. 68/2012 Page 15 of 31
but the respondent and other neighbours stopped her doing so
and forcibly taken away the said can from her hands. The
petitioner remained the whole night under great terror and
tension of the behavior of the respondent. It is submitted that in
the morning the petitioner with folded hand requested to keep
quiet and to prepare tea etc. but the respondent was not in a
mood to settle herself in the family of the petitioner only. The
petitioner called her parents but only her brother came at about
12:30 p.m. on 29.06.2006 and told him about what she did in
the night and in the previous days. It was her brother who
asked the petitioner to transfer the ownership of this house in
her name so as to keep her mum on every matter and also the
respondent seconded what her brother said and asked the
petitioner to do. The petitioner felt himself in dilemma and was
out of sight to think right or the wrong and ultimately brother of
the respondent namely Rahul left in the evening directing the
petitioner to do whatever he said to do to the petitioner”.
26. He also made deposition with regard to the incident of 05.07.2006
when, according to him, the appellant took out her entire jewelry from the
almirah and other valuables from the almirah and asked the respondent to
make up his mind to transfer the house in her name and stated that was the
only way left with the respondent to make the appellant his completely
devoted wife. She also stated that she has lot of resources to harass the
respondent and his family members and that she has power to crush the
entire family of the respondent by force. He also made a specific
deposition that on 05.07.2006, the appellant left the matrimonial home with
all her jewelry and other valuable articles and since then she had been living
with the parents. He also specifically deposed that on 31.10.2006, the
appellant and several persons attacked the respondent while he was at home
and has created seen in the area and asked the respondent to take steps
to transfer his property in her name or to give Rs. 1 crore, otherwise MAT.APP. 68/2012 Page 16 of 31
the respondent and his family members would be responsible for the
consequences.
27. The examination in chief of the respondent PW-1, as noticed above, is
exactly on the same lines as the averments contained in the petition. Thus,
the respondent has made specific statements in his testimony with regard to
the incident of 11.02.2005, 18.06.2006-which continued into early hours of
29.06.2006, 05.07.2006 and 31.10.2006.
28. In the face of the aforesaid specific averments, it cannot be said that
the respondent did not make specific allegations of cruelty against the
appellant by giving particulars of the dates and events which, according to
him, transpired and constituted acts of cruelty on the part of the appellant.
29. The parties are required to make specific pleadings for the reason that
it enables the opposite party to specifically meet, verify, and if necessary,
challenge/deny the averments/ allegations. Otherwise, the opposite party
would remain in the dark and would not be able to effectively deal with the
accusations, allegations and averments made against him/her.
30. Apart from making the aforesaid specific allegations, the respondent
also made general allegations in his petition with regard to the alleged
general conduct and behaviour of the appellant. It may not always be
possible for a party to make specific allegations with regard to the date,
time, place of occurrence in relation to a generalized conduct, act or
omission – where such conduct is repeated continuously over a period of
time. Thus, the allegations that the appellant used to call the respondent
‘Hathi’ or ‘Mota Hathi’, cannot be given a particular date, time or place of
utterance as, according to the respondent, such an utterance was repeatedly
made by the appellant. Similarly, it may not be possible to give specific
dates and times in relation to the allegations that the appellant denied sex to
the respondent consistently. When two parties are in a marital relationship,
neither is expected to maintain a logbook and note down therein each and
every instance of matrimonial offence committed by the other. When the
allegation is that a party showed uncooperative attitude towards his/her
spouse and family members; did not show respect to the other spouse and
his family members; misbehaved and abused with the opposite party and his
family members – in respect of such allegations, it may not be possible to
plead a specific date, time or place of occurrence. However, when
intolerable conduct/matrimonial offence manifests itself into an incident
which has larger proportions, the aggrieved party would be able to pin
pointedly – with particulars and details, recite and establish such
matrimonial offence.
31. Thus, I am of the view that the decisions relied upon by Mr. Mehta in
Neelu Chopra (supra) and Rakesh (supra), firstly, do not apply in the facts
of the present case – as there are specific allegations with dates and
description of events which took place leading to commission of acts/
omission of cruelty against the respondent. Secondly, in a matrimonial
relationship, the same strict rule and yardstick cannot be adopted as in
criminal cases. For the same reasons, I am of the view that the observations
made in para 23 of Suman Singh (supra) relied upon by the appellant are of
no avail in the facts of this case.
32. The appellant cross examined PW-1 and PW-2. In the cross MAT.APP. 68/2012 Page 18 of 31
examination of PW-1, the appellant sought to raise a doubt with regard to
the incident alleged by the respondent, which allegedly took place in the
night of 11.02.2005. PW-1 was asked whether he had consulted the doctor
upon receiving injury on his private parts, to which he stated that he did.
Upon his being asked whether he had any medical proof regarding the
injury, he stated that he did not have any such proof. The claim of the
respondent/ husband that he was denied co-habitation by the appellant was
also sought to be challenged, as he was questioned whether he established
physical relationship with the appellant after the marriage. He responded by
saying “I passed several nights (physical relationship) with the respondent”.
The cross examination of PW-1 shows that several questions were posed on
the aspect of demand and receipt of dowry by the respondent/ husband. He
states that the appellant used to call him ‘Mota Hathi’ and used to quarrel
with him. He also stated that the appellant “used to taunt me that I am
nothing and I can do nothing and also I cannot satisfy her”.
33. Pertinently, there is absolutely no cross examination of PW-1 on any
of the other aspects on which he has deposed, namely, the incident of
28.06.2006 – which continued into early hours of 29.06.2006. The appellant
is accused of slapping the respondent, upon the respondent asking her to
give the child to him. On the said date, the appellant also asked the
respondent to leave the house, as she had already turned away the other
family members from the house. The appellant also got infuriated upon the
respondent trying to pacify her, and she started loudly abusing the
respondent and stated that she would put herself on fire and involve the
entire family of the respondent in a dowry death case. In the process, she MAT.APP. 68/2012 Page 19 of 31
brought one filled kerosene can and opened its lid, but the respondent and
other neighbours stopped her from doing so and forcibly took away the can
from her hands. The respondent called the parents of the appellant, but only
her brother came at about 12:30 p.m. on 29.06.2006. He was informed of
what had transpired on the previous day. The brother of the appellant asked
the respondent to transfer the ownership of his house in her name so as to
pacify her. The brother the appellant Rahul left in the evening directing the
respondent to act according to his advice.
34. Similarly, there is no cross examination in relation to the incident of
05.07.2006, when the appellant took away her entire jewelry from the
almirah and other valuables and asked the respondent to make up his mind
whether, or not, he would transfer his house in her name to secure the
appellant’s devotion and care. The appellant also threatened the respondent
that she had lots of resources to harass the respondent and his family
members, and to crush the respondent and his entire family by force. She
does not even cross examine PW-1 in relation to his testimony regarding the
incident of 31.10.2006, when the appellant and several persons attacked the
respondent while he was at home and created a scene in the area and
demanded the respondent to transfer his property in the name of the
appellant, or give her Rs.1 crore. There is no cross examination on the
respondents testimony that he was threatened with consequences, if he did
not do so.
35. The respondent PW-1 was also not challenged in relation to his
testimony that the appellant used to abuse him, ill-treat him and his family
members, and the like. Similarly, PW-2, PM, a neighbour residing in the MAT.APP. 68/2012 Page 20 of 31
close vicinity of the matrimonial home of the parties was also not cross
examined on several aspects. In fact, from his cross examination, it came
out that he was a witness to the repeated quarrels that the appellant had with
the respondent and his family members. These quarrels were not in the
ordinary course of marriage, but were of a permanent nature by the
appellant. He was a witness to the appellant abusing the respondent and
calling him ‘Mota Elephant’. He disclosed that the parents of the respondent
had to move out in a rented premises on account of the disputes between the
appellant and the respondent and his family members. He deposed that he
was a witness when the appellant had called persons from Ghaziabad and
from her family – whom he knew. He intervened when the quarrel was
started by the family members of the appellant and their men. Upon this, the
appellant asked him to as to why he was intervening, and also asked him to
leave. The said persons remained at the place for about one hour, and the
local people also gathered once the quarrel started. He was a witness to the
said persons of the appellant trying to occupy the premises, and abusing and
giving fist blows to the respondent. He even described that the parents of
the appellant had come in a Santro car, and they were accompanied by other
people. He disclosed that his perception was that the intention of the other
people was not good towards the respondent.
36. Reliance placed by Mr. Mehta on Sher Mohammad (supra), in my
view, is completely misplaced. Firstly, in the present case, not only did the
appellant not give any suggestion to the witnesses PW-1 and PW-2 to
challenge their testimony in chief, but even otherwise, as noticed above,
there was no cross examination of the said witnesses on the aspects on MAT.APP. 68/2012 Page 21 of 31
which they deposed, which were clearly damaging the defence of the
appellant.
37. The decision in Sher Mohammad (supra) was rendered in a suit for
specific performance of an agreement to sell. The Trial Court, after
examining and appreciating the evidence, returned the finding that the
agreement set up by the plaintiff was forged. It was held that merely
because the payment under the purported agreement was made in cash, it did
not make the agreement valid. Resultantly, the suit was dismissed with
costs. In first appeal, it was argued before this Court that though the
respondent/ defendant had claimed the receipt containing the agreement to
sell to be forged and fabricated, but in his evidence he had stated that his
signatures had obtained on a blank paper and receipt/ agreement to sell had
been fabricated thereon. It was also argued that PW-2, who was a witness to
the receipt, had deposed in his examination-in-chief that the consideration
amount of Rs.4,25,000/- was lying with the plaintiff, and that the said
amount was paid to the defendant/ respondent. However, no suggestion was
given to PW-2 in his cross-examination that the said cash was not paid to the
defendant. It was, thus, claimed that the payments stood proved, and the
onus shifted upon the respondent/ defendant, which he failed to discharge.
It was in this context that the Court rejected the argument of the appellant/
plaintiff that, as no suggestion had been given to PW-2 by the defendant
challenging his statement that cash of Rs.4.25 lacs was delivered by the
plaintiff in his presence, that this Court made the observations as quoted
above.
38. It is well settled that a judgment must be read as applicable to the MAT.APP. 68/2012 Page 22 of 31
particular facts proved, or assumed to be proved, since the generality of the
expression which may be found there are not intended to be exposition of
the whole law, but are governed and qualified by the particular facts of the
case in which such expressions are to be found. A case is only an authority
for what it actually decides. What is the essence in a decision is its ratio,
and not other observations found therein, nor what logically follows from
the various observations made in it. Each case depends on its own facts, and
a close similarity between one case and another is not enough because, even
a single significant detail may alter the entire aspect in deciding such cases.
One should avoid the temptation to decide cases by matching the colour of
one case against the colour of another. In this regard, I may refer to the
judgment of the Supreme Court in Bank of India & Anr. v. K. Mohandas
& Ors., (2009) 5 SCC 313, wherein the Supreme Court referred to and
relied upon Quinn vs. Leathem, 1901 AC 495, State of Orissa v. Sudhanshu
Sekar Misra, AIR 1968 SC 647; Bhavnagar University vs. Palitana Sugar
Mill (P) Ltd., (2003) 2 SCC 111.
39. The Supreme Court also noticed in its earlier in decision in BPCL v.
NR Vairamani, (2004) 8 SCC 579, wherein the Court emphasised that
reliance should not be placed on a decision without discussing as to how the
factual situation fits in with the fact situation of the decision on which
reliance is placed. It was also observed that judgment of Courts are not be
construed as statute and the observations must be read in the context which
appear.
40. As noticed above, in matrimonial cases, the approach of the courts is
different from that adopted in other cases. In Suman Singh (supra), the MAT.APP. 68/2012 Page 23 of 31
Division Bench while relying upon A v. B (supra) observed that the nature
of proof required in matrimonial matter is different, considering the fact that
matters relating to the private intimate life of the parties are not supposed to
be known to other persons, and no corroboration can be expected in such
cases. To seek a corroboration to a fact pertaining to health of the intimate
relationship - which belongs to the sacred and secret precincts of marital life,
and which are known only to the spouses to the exclusion of all others,
would amount to shutting one’s eye towards the facts of life and reality.
Corroboration, therefore, to the version of either spouse on such aspects, can
hardly be expected to come from any other independent source.
41. The observations of this Court in Sher Mohammad (supra), therefore,
cannot be applied in the facts of the present case. The observations made by
the Court in Sher Mohammad (supra) when viewed in the light of the facts
of that case could only mean that it is not sufficient for a plaintiff to rely
upon the failure of the defendant to cross examine a particular witness of the
plaintiff on a certain aspect. The plaintiff has stand on his own legs and to
prove his own case to succeed.
42. As noticed above, Sher Mohammad (supra) was a case where the
Trial Court had found the agreement contained on the receipt to be forged
and fabricated. The Trial Court had also disbelieved the case of the plaintiff
that he had made payment of Rs.4.25 lacs in cash to the respondent/
defendant. It was in this context that this Court observed that mere failure to
cross examine PW-2 on the aspect of the payment, allegedly made by the
plaintiff to the defendant in his presence, was not enough to conclude in
favour of the plaintiff that the said payment had been made. Even MAT.APP. 68/2012 Page 24 of 31
otherwise, it is seen from Sher Mohammad (supra) that while making its
observation in para 20, as extracted above, this Court has not taken into
consideration the decisions of the Supreme Court in Rajinder Pershad
(supra), which, in turn, places reliance on Nahar Singh (supra). In Sher
Mohammad (supra), this Court has sought to draw a distinction between a
criminal trial and civil trial in the matter of appreciation of evidence. No
doubt, the standard of proof in the two proceedings is different. In criminal
trials, to secure conviction, the standard of proof applied is “beyond all
reasonable doubt”, whereas in a civil trial, the standard of proof required to
prove its case by a party is that of “preponderance of probabilities”.
43. Section 138 and 146 of the Evidence Act, which deals with the order
of examinations, inter alia, states that:
“138. Order of examinations.—Witnesses shall be first
examined-in-chief, then (if the adverse party so desires) crossexamined,
then (if the party calling him so desires) reexamined.
The examination and cross-examination must relate
to relevant facts, but the cross-examination need not be
confined to the facts to which the witness testified on his
examination-in-chief. Direction of re-examination.—The reexamination
shall be directed to the explanation of matters
referred to in cross-examination; and, if new matter is, by
permission of the Court, introduced in re-examination, the
adverse party may further cross-examine upon that matter”.
and Section 146, which deals with the nature of question which may
be put to a witness in his cross examination, inter alia, states:
“146. Questions lawful in cross-examination.—When a witness
is cross-examined, he may, in addition to the questions
hereinbefore referred to, be asked any questions which tend—MAT.APP. 68/2012 Page 25 of 31
(1) to test his veracity,
(2) to discover who he is and what is his position in life,
or
(3) to shake his credit, by injuring his character,
although the answer to such questions might tend directly
or indirectly to criminate him or might expose or tend
directly or indirectly to expose him to a penalty or
forfeiture: Provided that in a prosecution for rape or
attempt to commit rape, it shall not be permissible to put
questions in the cross-examination of the prosecutrix as
to her general immoral character.
These sections are applicable to both civil and criminal trial, and the
Evidence Act does not draw a distinction with regard to applicability of the
said provisions to one, or the other trial. Pertinently, Rajinder Pershad
(supra) is a case arising from a civil trial relating to eviction of a tenant by
the landlord. In Rajinder Pershad (supra), the Supreme Court, inter alia,
observed as follows:
“4. … … There is an age-old rule that if you dispute the
correctness of the statement of a witness you must give him
opportunity to explain his statement by drawing his attention to
that part of it which is objected to as untrue, otherwise you can
not impeach his credit. In State of U.P. v. Nahar Sing (dead)
and Ors., [1998] 3 SCC 561, a Bench of this Court (to which 1
was a party) stated the principle that Section 138 of the
Evidence Act confers a valuable right to cross-examination a
witness tendered in evidence by opposite party. The scope of
that provision is enlarged by Section 146 of the Evidence Act by
permitting a witness to be questioned, inter alia, to test his
veracity. It was observed:
"14. The oft-quoted observation of Lord Herschell,
L.C. in Browne v. Dunn [(1893) 6 The Reports 67] clearly
elucidates the principle underlying those provisions. It
reads thus: MAT.APP. 68/2012 Page 26 of 31
"I cannot help saying, that it seems to me to be
absolutely essential to the proper conduct of a
cause, where it is intended to suggest that a witness
is not speaking the truth on a particular point, to
direct his attention to the fact by some questions put
in cross-examination showing that that imputation
is intended to be made and not to take his evidence
and pass it by as a matter altogether unchallenged,
and then, when it is impossible for him to explain,
as perhaps he might have been able to do if such
questions had been put to him, the circumstances
which, it is suggested, indicate that the story he
tells ought not to be believed, to argue that he is a
witness unworthy of credit. My Lords, I have
always understood that if you intend to impeach a
witness, you are bound, whilst he is in the box, to
give an opportunity of making any explanation
which is open to him; and, as it seems to me, that is
not only a rule of professional practice in the
conduct of a case, but it is essential to fair play and
fair dealing with witnesses."
44. Nahar Singh (supra), which is relied upon in Rajinder Parshad
(supra), was, no doubt, a case arising from a criminal trial. In Nahar Singh
(supra), the Supreme Court observed:
“13. It may be noted here that that part of the statement of
PW-1 was not cross-examined by the accused. In the absence of
cross-examination on the explanation of delay, the evidence
PW-1 remained unchallenged and ought to have been believed
by the High Court. Section 138 of the Evidence Act confers a
valuable right of cross-examining the witness tendered in
evidence by the opposite party. The scope of that provision is
enlarged by Section 146 of the Evidence Act by allowing a
witness to be questioned: MAT.APP. 68/2012 Page 27 of 31
(1) to test his veracity.
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the
answer to such questions might tend directly or indirectly to
incriminate him or might expose or tend directly or indirectly
to expose him to a penalty or forfeiture.
14. The oft-quoted observation of Lord Herschell, L.C. in
Browne vs. Dunn [(1893) 6 The Reports 67] clearly elucidates
the principle underlying those provisions. It reads thus:
“I cannot help saying, that it seems to me to be
absolutely essential to the proper conduct of a
cause, where it is intended to suggest that a
witness is not speaking the truth on a particular
point, to direct his attention to the fact by some
questions put in cross- examination showing that
imputation is intended to be made, and not to take
his evidence and pass it by as a matter altogether
unchallenged, and then, when it is impossible for
him to explain, as perhaps he might have been
able to do if such questions had been put to him,
the circumstances which, it is suggested, indicate
that the story he tells ought not to be believed, to
argue that he is a witness unworthy of credit. My
Lords, I have always understood that if you
intend to impeach a witness, you are bound, whilst
he is in the box, to give an opportunity of making
any explanation which is open to him; and, as it
seems to me, that is not only a rule of professional
practice in the conduct of a case, but it is essential
to fair play and fair dealing with witnesses”.
This aspect was unfortunately missed by the High Court when it
came to the conclusion that explanation for the delay is not at
all convincing. This reason is, therefore, far from convincing”. MAT.APP. 68/2012 Page 28 of 31
45. Pertinently, Browne v. Dunn (supra), relied upon in Nahar Singh
(supra) was itself a case arising from a civil trial. The House of Lords was
dealing with a libel suit, wherein the aforesaid extracted observations were
made. The said principle was also applied by this Court in Srichand
(supra), a case arising out of Food Adulteration Act, wherein the Court
observed:
“6. …. …. The law is well settled that where the evidence of
a witness is allowed to go unchallenged with regard to any
particular point it may safely be accepted as true …. …”.
46. Therefore, with utmost respect to the learned Judge, it appears that
while making the aforesaid observations in Sher Mohammad (supra), the
Court was not conscious of the earlier pronouncements of the Supreme
Court, and of this Court. Since there are earlier decisions of the Supreme
Court and this Court available on the same point, which apparently run
contrary to what has been observed in Sher Mohammad (supra), I am bound
to follow those decisions in preference to Sher Mohammad (supra).
47. The submission of Mr. Mehta that the learned ADJ has adopted
different yardstick while appreciating the evidence of the parties also has no
merit. The respondent/ husband had not only led his own evidence, but also
the evidence of PW-2, an immediate neighbour of the parties while they
were living the matrimonial home. The said witness had deposed that he
had intervened several times in the disputes between the parties being a
neighbour and having known the respondent/ husband for about 17-18 years.
He deposed on the aspect of the parents and sister of the respondent shifting MAT.APP. 68/2012 Page 29 of 31
to a rented premises, as they could not live peacefully alongwith the
appellant. He was a witness to the torture to which the respondent and his
parents were subjected to by the appellant. He was also a witness to the
incident involving the appellant calling persons from Ghaziabad to attack
the respondent. As noticed above, in his cross examination, he has further
elaborated on his testimony on the manner in which the appellant subjected
the respondent to cruelty by, inter alia, calling him ‘Mota Elephant’;
quarreling with the respondent even on the streets; calling her parents and
others from Ghaziabad who abused and gave fist blows to the respondent.
48. So far as non production of the doctor by the respondent regarding the
injury suffered on his private parts–on account of the assault allegedly made
on 11.02.2005 is concerned, one has to keep in mind that the nature of injury
claimed to have been suffered, and the manner in which the same is claimed
to have been suffered, must have put the respondent to great deal of
embarrassment and, therefore, his failure to maintain the medical record in
relation to the said injury, or to summon the doctor cannot lead one to
assume that the respondents stands discredited. Even if the said incident
were to be ignored, the other incidents established on record by the
respondent/ husband, by themselves, constitute sufficient evidence of the
respondent being subjected to cruelty by the appellant. The calling of names
and hurling of abuses such as ‘Hathi’, ‘Mota Hathi’ and ‘Mota Elephant’ by
the appellant in respect of her husband – even if he was overweight, is
bound to strike at his self respect and self esteem. Obviously, the
respondent was sensitive to such taunts, and it is not the appellants case that
the taunts were made jokingly, or out of love and affection, and without MAT.APP. 68/2012 Page 30 of 31
malice.
49. It has come on record that the appellant taunted the respondent for not
being able to satiate her sexual desire on account of his being heavy weight.
It has also come on record that on 28.06.2006, the appellant not only slapped
the respondent but asked him to leave the house. She also caught hold of
kerosene can and opened its lid threatening the respondent that she would
immolate herself and implicate the respondent and his family in a dowry
case. The respondent also established that he reported this incident to his inlaws,
but only his brother-in-law Rahul came on 29.06.2006 at about 12:30
p.m. and adviced the respondent to transfer his property in favour of the
appellant to secure peace. She left the matrimonial home on 05.07.2006
with her jewelry and belongings, and gave an ultimatum to the respondent
that he should transfer his property in her name if he desired that she lives
like a devoted wife. The incident of 31.10.2006-when the parents and other
people from Ghaziabad came and fought with the respondent; abused him
and even assaulted him is also a serious incident, and each of this aforesaid
incidents are grave and weighty matrimonial offences/misconducts by the
appellant, which cannot be described as events relating to normal wear and
tear of a marriage. Such events are clearly destructive of the matrimonial
bond and would naturally give rise to a bonafide and genuine belief and
apprehension in the mind of the respondent that it is not safe for him to
peacefully and mentally continue the relationship with the appellant.
Pertinently, it has not even been urged by Mr. Mehta that if the allegations
made against the appellant are accepted as established, the same would not
constitute mental cruelty in law. MAT.APP. 68/2012 Page 31 of 31
50. For all the aforesaid reasons, I am of the view that there is no merit in
the present appeal and the same is, accordingly, dismissed leaving the
parties to bear their respective costs.
VIPIN SANGHI, J
MARCH 22, 2016
sr
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