April 06, 2008 he had not met them. He did not even know in which
standard his son was studying. This shows his indifferent attitude towards
his wife and child. The admitted fact that the respondent/wife till date had
been taking care of her son single handedly without even asking for
maintenance shows that she never had any intention to break the
matrimonial ties.
28. It is a matter of common knowledge that after leaving the matrimonial
home all kinds of civil and criminal proceedings are initiated against the
husband and in laws but in this case we find that after leaving the
matrimonial home the wife did not take recourse to any legal remedy. In the
given circumstances there was hardly any material available to the
appellant/husband to claim dissolution of marriage on account of the mental
cruelty.
29. In view of the above we are of the considered view that learned Judge
Family Court correctly appreciated the evidence or arrive at the conclusion
that it was not a case of dissolution of marriage on the ground of cruelty
being caused to the appellant/husband. Even if there was any act of mental
cruelty, the same was condoned by the appellant/husband by cohabiting till
she left on April 06, 2008. There is no instance of cruelty being committed
by the respondent/wife thereafter.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on: August 19, 2016
MAT.APP. 08/2012
NEERAJ KUMAR .
versus
POOJA VERMA ....
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
1. In the instant appeal the appellant/husband has impugned the
judgment dated December 01, 2011 passed by the learned Judge, Family
Court, Rohini, Delhi whereby the petition filed by him for dissolution of
marriage on account of cruelty being committed by the respondent/wife was
dismissed.
2. The appellant/husband got married to the respondent/wife on
November 22, 2004 according to Hindu rites and ceremonies. The marriage
was consummated and a son was born on January 01, 2006.
3. In the petition filed under Section 13(1)(ia) of Hindu Marriage Act,
1955 the instances of cruelty stated to have been committed by the
respondent/wife cited by the appellant/husband are numerous starting right
from the second day of the marriage. As per the appellant/husband, on the
very next day of the marriage the respondent/wife started treating his
mother, sister and sister-in-law in an insulting manner complaining that the
language used by them was not to her liking and that her sister-in-law did
not know how to speak. The respondent/wife considered herself to be
modern and well-educated and she ill-treated the family members of the
appellant/husband who are having rural background. She also called the
mother of the appellant as uneducated ‘Ganwar’. The respondent/wife was
studying at National Museum Institute, New Delhi. To avoid doing of
household work she used to leave house even on Saturday and Sunday on
the pretext of going to Institute whereas in fact she used to visit her parental
home or roam around with her friends. The respondent/wife did not want to
live in joint family and had been threatening the appellant to have a separate
house in Rohini. One of the most serious allegation made by the
respondent/wife against the appellant was that of having illicit relations with
his sister-in-law (bhabhi). The respondent/wife created a scene when his
sister visited them and his two years old niece wanted to sleep with him.
The respondent/wife started shouting that the appellant/husband was in his
Bhabhi’s room. She also even complained against her father-in-law saying
that he had bad eyes on her. The respondent/wife had also insulted his
mother and sister who had visited her parental home to enquire about her
wellbeing. She also quarrelled on the issue that why she was sent to the
parental home for delivery whereas her Jethani when became pregnant was
not sent to her parents house.
4. In the written statement the respondent claimed her also to be from
the rural background so there was no occasion to insult her in-laws on that
count. She had given the instances of she being treated with cruelty at her
in-law’s place and being compelled to do household work even when she
was unwell. The respondent had alleged that she was not properly looked
after when she was in family-way. The appellant/husband was well aware
of the fact that the delivery was going to be caesarean. Despite being
intimated about her admission in the nursing home, neither her husband nor
her in-laws were present. They came to see her and the child only on the
next day. She has denied having ever misbehaved with her sister-in-law or
other family members or levelling any allegations about the illicit relations
between her husband and her sister-in-law. She also denied having ever
asked the husband to shift to Rohini in a rented accommodation or
threatening to implicate him in any false case. The respondent/wife had
stated that till date she has not lodged any complaint against her husband or
in-laws. She tried to save the marriage for the sake of their only child. She
also claimed that the appellant/husband had never visited her or their son
after she left home. The respondent/wife had alleged that false stories have
been concocted to make out a case of cruelty to seek divorce.
5. After considering the evidence adduced by the parties, learned Judge,
Family Court dismissed the divorce petition mainly on the following
grounds:
i. The appellant/husband has examined only himself as PW-1.
ii. Affidavit filed by his father could not be read in evidence as he did
not enter into the witness box.
6. The learned Judge, Family Court had noted the instances of cruelty as
under:
i. Respondent used to find fault with his mother and sister.
ii. Respondent was disrespectful to the family of the petitioner.
iii. Respondent used to go to her paternal home or remain with her
friends on the pretext of going to college.
iv. She insisted for living separately in Rohini.
v. He had illicit relations with his Bhabhi. The respondent/wife created
a scene when his sister visited them and his two years old niece wanted to
sleep with him. The respondent/wife started shouting alleging that the
appellant/husband was in his Bhabhi’s room.
7. Learned Judge, Family Court while observing that there is no
allegation of physical cruelty being committed by the wife and divorce is
being sought on the allegations of mental cruelty, held that the
appellant/husband failed to prove that he was treated with cruelty.
8. Family Court had assigned the following reasons for arriving at the
above conclusion:
i. The husband has not examined his mother, sister or sister-in-law or
any family member to prove the behaviour of wife right from the second day
of her marriage.
ii. The husband failed to prove that such behaviour of the wife was
continuing and caused grave mental cruelty to him. He also failed to put
these allegations to the wife when she appeared for cross-examination.
iii. Regarding the third instance of mental cruelty i.e. with a view to
avoid the household work, she used to visit NMI on Saturday and Sunday
though it used to be closed and that she used to roam either with friends or
visit her parents house was held to be not proved as no such suggestion was
given to the wife during her cross-examination.
iv. The fourth allegation that the wife used to compel the
appellant/husband to live separately in Rohini was also held to be not proved
as no such suggestion was put to her by the appellant/husband.
v. The most serious allegation against the appellant/husband was that his
wife used to suspect her husband of having illicit relations with his Bhabhi.
Even this was not put to the respondent/wife during her cross-examination.
Even no suggestion was given to her that she suspected his character. The
only suggestion given to the respondent/wife by the appellant/husband was
that when his parents were discussing about his character assassination,
respondent/wife overheard the same and started giving her husband with fist
blows complaining as to why he had disclosed this fact to his parents.
9. Learned Family Court has observed that the respondent/wife had no
intention to malign the image of her husband and was not interested in
bringing this fact to the notice of his in-laws. Even in the written statement
the respondent/wife did not make any averment accusing her husband
having illicit relations with his Bhabhi or any other lady.
10. Other instances of mental cruelty i.e. creating a scene when his sister
visited them or shouting at the appellant/husband or his family when they
went to see the new born on the next day of birth, were considered by the
Court not to be so grave and hazardous which would make the
appellant/husband think that it was difficult to live with the respondent/wife.
11. Other incidents of similar nature were termed as daily wear and tear
of the matrimonial life not amounting to mental cruelty.
12. Learned counsel for the appellant has assailed the verdict of the
Family Court submitting that it was a case of mental cruelty being
committed on the husband despite all his efforts to save the marriage. He
was accused of having illicit relationship with his Bhabhi. False allegations
of demanding `2,00,000/- was made against the appellant/husband and the
in-laws which caused grave and mental/physical cruelty on the
appellant/husband. Learned counsel for the appellant has further submitted
that the respondent has no intention to return to the matrimonial home and
the marriage has reached point of irretrievable breakdown.
13. Learned counsel for the appellant has relied upon 2014 (8) LRC 203
(Del.) Anil Singh (Mrs.) vs. Dr.Narender Singh, 2014(9) LRC 289 (Del.)
Mahendra Kumar Sharma vs. Sunita Sharma, 2009 (2) HLR 43 Vimla
Mehra vs. K.S.Mehra, 2001 (2) Orissa LR 600 Durga Prasanna Tripathy vs.
Arundhati Tripathy, AIR 2007 Gauhati 122 (DB) Smt.Rita Das Biswas vs.
Trilokesh Das Biswas, AIR 2007 (NOC) 168 (Cal.) Swapan Kumar Parui
vs. State of West Bengal & Ors., AIR 2007 NOC) 88 (Chh.) Bharat Ram
Sahu vs. Salik & Ors., 1996 AIR (AP) 19 Jayakrishna Panigrahi vs.
Surekha Panigrahi, AIR 1998 Andhra Pradesh 296 Smt.S.Vijayalaxmi vs.
S.Bheemreddy, AIR 1999 Rajasthan 181 Smt.Shimla Devi vs. Kuldeep
Sharma, and AIR 2003 Allahabad 51 Poonam Gupta vs. Ghanshyam Gupta,
in support of his contentions.
14. It has been submitted by the learned counsel for the appellant that in
the instant case it has been more than eight years that the respondent/wife
had left matrimonial home i.e. on April 06, 2008. She did not return
thereafter and if divorce is not granted even after eight years of the
respondent/wife leaving the home after causing mental cruelty to the
appellant/husband, it would amount to further cruelty on him. Hence
marriage may be dissolved by a decree of divorce.
15. At the outset, we would like to observe that the respondent did not
seek dissolution of marriage on account of desertion under Section 13(1)(ib)
of the Hindu Marriage Act. He sought divorce on account of the mental
cruelty being committed by the respondent/wife. The instances of cruelty
have already been enumerated by us above and we agree with the findings of
the learned Judge Family Court that none of the aforesaid incident except
the accusation of illicit relationship with his bhabhi or creating a scene when
he was alleged to be in his bhabhi’s room, amounts to mental cruelty of a
level envisaged under Section 13(1)(ia) of the Hindu Marriage Act. Learned
Judge has rightly considered these instances to be normal wear and tear of
the matrimonial life which did not necessitate dissolution of marriage on
account of the allegations made against the respondent/wife. Reliance placed
by learned counsel for the appellant on the various reports referred to above
to seek dissolution of marriage which he claimed to have reached the point
of irretrievable breakdown requiring to be dissolved by Court of law, needs
to be rejected at the very outset.
16. The aspect needs to be examined by us is whether on appreciation of
testimony of the parties, learned Judge Family Court has rightly concluded
that no case of cruelty being committed by the respondent/wife is proved.
17. At the cost of repetition we note down some dates. Date of marriage is
November 22, 2004. Date of birth of male child is January 01, 2006. Date of
leaving the matrimonial home by the wife is April 06, 2008. From the
testimony of the appellant/husband, we do not find any evidence to the
effect that till the respondent/wife left the matrimonial home, they were not
leading a normal matrimonial life or that they were not cohabitating.
18. We need not enter into the detail of all the dates when the
respondent/wife had been temporarily leaving the matrimonial home to visit
her parents either to meet them or on account of the delivery of the child or
otherwise necessitated by some customs rituals. The fact remains that when
nephew of the appellant was born on July 13, 2007, he brought his wife back
on July 15, 2007 and left her at the matrimonial home. Thereafter we do not
find any evidence that after she was brought back to the matrimonial home
on the occasion of the birth of son of his elder brother, they did not resume
cohabitation.
19. The law pertaining to cruelty is if by resuming cohabitation the
spouse claiming victim of cruelty forgives the other spouse who commits the
cruelty, the alleged act of past cruelty cannot be relied upon to seek divorce
on account of the cruelty unless they are revived by subsequent acts of
cruelty.
20. On perusal of the Trial Court's record, we notice that the
appellant/husband is a teacher in M.C.Primary School whereas the
respondent is a Trained Graduate Teacher. While the appellant is claiming
himself from rural background, the respondent/wife though living in Rohini
also claimed to be from the rural background thus having no issue on the
dialect of her mother-in-law or other family members.
21. The appellant/husband has admitted that his wife was sent to her
parent’s home for delivery purpose as she was registered with Gupta
Nursing Home in Rohini. It is also admitted by him that he was not there by
the side of his wife on the date or at the time of delivery despite being
informed by her parents about her admission in nursery. It is his own case
that when informed about her admission in nursing home, he asked them to
contact his parents to do the paper work. It is also admitted case of the
appellant/husband that he along with his family members visited the nursing
home only on the next date of birth of the child.
22. The son was born to parties on January 01, 2006 making the new year
really happy for them. The appellant/husband herein was not on any official
duty or discharging any social obligations which could have compelled him
to be away from his wife when she was to be operated upon for the delivery.
We feel that this act of the appellant/husband would have created some kind
of bitterness in the mind of respondent/wife about the manner in which her
husband was conducting himself when she was under the knife of a Surgeon
to bring their child in this world. Positive attitude of the appellant/husband
at that time would have given a soothing touch to the hurt emotions of the
wife at that stage. Visit by the appellant/husband to the nursing home next
day like a visitor or guest must have widened the gap in their relationship.
Even if it is assumed for the sake of arguments that for the reasons beyond
his control, the appellant/husband could not visit the nursing home on the
day of delivery, at least he could have brought on record the reason for not
being with her in the nursing home to welcome the new year and their
bundle of joy arriving on the new year.
23. The fact that on the birth of his nephew the respondent/wife
accompany him to the matrimonial home and after just dropping her there,
he again left the matrimonial home, shows his abnormal conduct towards his
wife and son. Thus, we gather from the averments made in para 18 of the
affidavit deposing that after bringing back the respondent/wife to the
matrimonial home, the appellant/husband went out for some urgent work. In
his absence, the respondent/wife asked and compelled his brother to vacate
the room on first floor. His brother called 3-4 boys and shifted the entire
luggage from that room. We may note here that brother of the
appellant/husband was not examined to prove any such instance. Rather as
per the written statement, shifting was necessitated as her ‘jeth’ wanted to be
on the ground floor close to his wife who delivered a son on July 13, 2007.
24. As per para 22 of the affidavit, on the death of mother of his bhabhi
on March 19, 2008, the respondent/wife purchased a box of sweets and
distributed to the family members. No family member has been examine to
establish the above fact.
25. Another instance of cruelty as mentioned in para 16 of the affidavit is
extracted as under:
‘16. That the deponent state that in Feb/March 2007, the sister of the
petitioner came to the house of the petitioner alongwith her two small
kids. The two year old niece of the petitioner insisted to sleep with the
petitioner and accordingly, the petitioner allowed her to sleep
alongwith him but the respondent created hawked in the family during
night she started abusing the petitioner in an unparliamentarily
language and stated that she will not allow any person to enter her
room because she wants complete privacy. The petitioner then took
the baby girl and left her with his sister and he went upstairs feeling
insulting and depressed. While he was sitting on the terrace, there
was a hue and cry downstairs and the sister of the petitioner went
upstairs and she asked as to why she was sitting there. The petitioner
disclosed the entire episode and told his sister that the respondent
abuses him and insulted him. When he came down stairs, the
respondent started shouting saying that the petitioner was in the room
of his bhabhi. Everybody tried to explain and make her understand.
Ultimately, when the atmosphere was normal, the petitioner requested
the respondent, his sister, elder brother and his wife not to say
anything about the said incident to the parents of the petitioner who
were sleeping in the ‘Gher’............’
26. The above deposition of the appellant/husband shows that the incident
was in the presence of all the family members but neither the sister has been
examined nor brother or bhabhi have been examined to prove any such
incident.
27. It is admitted case of the appellant/husband that after his wife left on
April 06, 2008 he had not met them. He did not even know in which
standard his son was studying. This shows his indifferent attitude towards
his wife and child. The admitted fact that the respondent/wife till date had
been taking care of her son single handedly without even asking for
maintenance shows that she never had any intention to break the
matrimonial ties.
28. It is a matter of common knowledge that after leaving the matrimonial
home all kinds of civil and criminal proceedings are initiated against the
husband and in laws but in this case we find that after leaving the
matrimonial home the wife did not take recourse to any legal remedy. In the
given circumstances there was hardly any material available to the
appellant/husband to claim dissolution of marriage on account of the mental
cruelty.
29. In view of the above we are of the considered view that learned Judge
Family Court correctly appreciated the evidence or arrive at the conclusion
that it was not a case of dissolution of marriage on the ground of cruelty
being caused to the appellant/husband. Even if there was any act of mental
cruelty, the same was condoned by the appellant/husband by cohabiting till
she left on April 06, 2008. There is no instance of cruelty being committed
by the respondent/wife thereafter.
30. Lastly it has been urged before us that the marriage has been broken
down irretrievably as more than eight years have passed since the date the
respondent/wife left the matrimonial life, hence marriage may be dissolved
by a decree of divorce.
31. The case law cited by learned counsel for the appellant/husband
referred to above is of no help to the appellant in view of the decision of the
Supreme Court in (2009) 6 SCC 379 Vishnu Dutt Sharma Vs. Manju
Sharma. The Supreme Court while dealing with a similar contention, held
as under:
“10. On a bare reading of Section 13 of the Act, reproduced
above, it is crystal clear that no such ground of irretrievable
breakdown of the marriage is provided by the legislature for
granting a decree of divorce. This Court cannot add such a ground
to Section 13 of the Act as that would be amending the Act, which
is a function of the legislature.
11. Learned Counsel for the appellant has stated that this Court in
some cases has dissolved a marriage on the ground of irretrievable
breakdown. In our opinion, those cases have not taken into
consideration the legal position which we have mentioned above,
and hence they are not precedents. A mere direction of the Court
without considering the legal position is not a precedent.
12. If we grant divorce on the ground of irretrievable breakdown,
then we shall by judicial verdict be adding a clause to Section 13
of the Act to the effect that irretrievable breakdown of the
marriage is also a ground for divorce. In our opinion, this can only
be done by the legislature and not by the Court. It is for the
Parliament to enact or amend the law and not for the Courts.
Hence, we do not find force in the submission of the learned
Counsel for the appellant.
13. Had both parties been willing we could, of course, have
granted a divorce by mutual consent as contemplated by Section
13B of the Act, but in this case the respondent is not willing to
agree to a divorce.”
32. In the instant case the respondent/wife has no where expressed her
desire to seek a divorce. We do not find any sincere effort made by the
appellant/husband to save the marriage by remaining in touch with his wife
and son or to provide some amount for better upbringing of their son. This
have been a case to seek dissolution of marriage on account of cruelty and
not on desertion, the appellant is not entitled to seek a decree of divorce
claiming that the marriage has been broken down irretrievably.
33. After re-appreciating the evidence we reached the same conclusion as
arrived by the learned Judge, Family Court declining to grant divorce on the
ground of cruelty.
34. Finding no merit the appeal is dismissed.
35. No costs.
PRATIBHA RANI
(JUDGE)
PRADEEP NANDRAJOG
(JUDGE)
AUGUST 19, 2016
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