It sounds paradoxical that wife was not letting the husband to have
physical contact but the husband was blamed for keeping condoms
accessible to their eight years old daughter and also for waking up the
daughter in the midnight to witness their sexual activity. The allegations of
sexual perversity against the husband amounted to mental cruelty justifying
a decree of divorce. It may also be recorded here that the wife despite filing
a counter claim seeking judicial separation neither got any issue framed on
that nor led any evidence. Rather by stating that ‘For the physical mental,
emotional and overall growth of my child, I want all of us to live together.’
in her cross examination she had taken a stand which is in conflict with her
plea in the counter claim that ‘she does not want that the petitioner should
interfere in her as well as her daughter’s life and thus, she has sought the
relief of judicial separation and do not want divorce as she does not want to
remarry and wants to live her life for the sake of her daughter and she also
wants that she should not become the cause for embarrassment for her
growing daughter at later stage of life by becoming a divorcee and causing
a lifetime complex in the mind of her daughter’. We are unable to perceive
how these two situations can be reconciled.
16. Learned Judge, Family Court failed to consider the effect of serious
accusations made by the wife against the character of husband even towards
his daughter who was a child aged about 8 years at that time. The wife
inspite of making serious allegations against the husband impacting his
moral character with perverse sexuality did not even try to prove such
allegations while tendering her affidavit by way of examination-in-chief.
This leads to the inference that such allegations were baseless.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Dated: October 27, 2016
MAT.APP.(F.C.) 129/2016
JAYANTI .
v
RAKESH MEDIRATTA
CORAM:
MR. JUSTICE PRADEEP NANDRAJOG
MS. JUSTICE PRATIBHA RANI
1. The appellant-wife is aggrieved by the judgment and decree dated
July 21, 2016 passed by learned Judge, Family Court in HMA Petition
No.289/2014 (Old No.647/2012) whereby the marriage between the parties
is dissolved by a decree of divorce.
2. The appellant-wife in this case is well qualified. She is M.Com, B.Ed.
employed as Post Graduate Teacher in a reputed public school in Delhi. The
respondent-husband is also well placed in a private company earning a
decent salary. We shall hereinafter refer the parties as the ‘wife’ and the
‘husband’.
3. It is admitted case of the parties that they got married on February 22,
2004 in accordance with Hindu rites and ceremonies. The couple was
blessed with a female child on December 08, 2004. Matrimonial discord
started in the year 2005. Since at the matrimonial home the parents-in-law
of the wife were also residing, the parties started living separately in a rented
accommodation in close proximity to the matrimonial home. The wife left
the rented accommodation in December, 2006. Litigations between the
parties started in the year 2007 which was put to an end by them by entering
into a Memorandum of Understanding on May 04, 2010. While condoning
the acts attributed to each other, they decided to live together at Shakarpur in
a premises owned by father of the wife. The parties lived together till
October 01, 2012. Thereafter pursuant to the incident dated October 01,
2012, when police was also called by the wife, the husband left Shakarpur
and returned to his parents’ home in Shalimar Bagh. He also brought
alongwith him the air conditioner, washing machine and other belongings
which were purchased by him when the parties decided to live in Shakarpur
in a separate accommodation in terms of settlement. Since the efforts by the
parties to give another trial to their marriage failed, HMA Petition
No.647/2012 was filed by the husband in December, 2012 seeking
dissolution of marriage.
4. The wife filed the written statement as well the counter claim seeking
judicial separation. The learned Judge, Family Court proceeded to dispose
of the HMA petition with reference to the acts of cruelty post MOU dated
May 04, 2010. Therefore, we need not delve on various acts of cruelty
alleged prior to MOU dated May 04, 2010.
5. The learned Judge Family Court had granted a decree of divorce on
being satisfied that the husband was subjected to mental cruelty within the
meaning of Section 13(1)(ia) of Hindu Marriage Act, 1955 for the following
reasons:-
(i) The husband had been able to prove that he had been deprived of
conjugal relationship by the wife. This was admitted by the wife during her
cross examination.
(ii) Though the parties were living under one roof during the period May
04, 2010 to October 02, 2012, they were not living as husband and wife.
The wife denied physical contact to her husband on the pretext of requiring
more time to develop understanding between the two.
6. In matrimonial proceedings, the pleadings assume grave significance.
In view of Section 20 of Hindu Marriage Act, 1955 the Court is empowered
to act upon unfounded allegations in the pleadings treating the same as
evidence.
7. We would like to extract Section 20 of Hindu Marriage Act, 1955
which reads as under:-
‘20. Contents and verification of petitions. –
(1)Every petition presented under this Act shall stated as distinctly as
the nature of the case permits the facts on which the claim to relief is
founded [and, except in a petition under Section 11, shall also state]
that there is no collusion between the petitioner and the other party to
the marriage.
(2) The statements contained in every petition under this Act
shall be verified by the petitioner or some other competent person in
the manner required by law for the verification of plaints, and may, at
the hearing, be referred to as evidence.’
8. Since the allegations repeatedly made in the written statement
and the counter claim per se constitute cruelty which entitles the husband
straight-way to a decree of divorce, we would like to extract the relevant
paragraphs of the written statement and the counter claim to refer to the
accusations against the husband in her own words:-
IN WRITTEN STATEMENT
‘32. ........His habits such as keeping utensils anywhere he likes
after eating, putting water on chakla when the respondent is making
chappatis, breaking the belan, entering the washroom when
daughter of the parties is using the same etc. etc. is causing gave
mental agonies to the respondent. Even the daughter of the parties,
who is becoming mature by her age, once said to respondent,
“MUMMY MERE PAPA AISA KYON KARTE HAIN? DOOSRON KE
PAPA TO AISA NAHI KARTE”.
34.Contents of this para are wrong and denied. It is denied that
petitioner tried to make understand the respondent about the conjugal
relation of husband and wife but the respondent totally denied to keep
any conjugal relations with the petitioner for the reasons best known
to her. It is denied that whenever the petitioner tried to touch the
respondent, respondent started abusing him like idiot and nonsense
and pushed the petitioner away from her. It is denied that petitioner
had to pass is nights in the feeling of mental harassment. It is denied
that respondent did not make any relations of a wife with the
petitioner after the settlement till date and thus the parties, though
lived under the same roof, but there was no relationship of husband
and wife between the parties and therefore, respondent has totally
deserted and neglected the company and society of the petitioner. It
is submitted that the petitioner crossed all limits of decency by not
even sparing her daughter who is now 8 years old by keeping
obscene books in the clothes of Riddhi, condoms in drawers etc. It
is a shameful and most immoral act of the petitioner by victimizing
his own daughter by his uncontrolled lust! Not even this, he used to
wake respondent up at midnight for sexual intercourse and even
wake up the daughter of the parties and used to ask her to witness
the sexual acts and advances which he was making to the
respondent. Thus, it would not be an exaggeration to conclude that
he had become sexually so perverse and characterless that he even
didn’t realize that what effect shall be borne by the daughter of the
parties who is growing up. The petitioner even didn’t hesitate to
make his daughter ashamed in front of her friends by humiliating
her in their presence. He even said once, “AGAR YEH MRI BAAT
NAHI MANEGI TO MAIN BAHAR KI AURAT KE PAAS
JAUNGA AUR USSI KE PAAS RAHUNGA”. The daughter, Riddi
once asked, “MUMMY, JAB PAPA AAPKO CHEDTE HAIN TO
KYA AAPKO BURA NAHI LAGTA KYA?”. From this fact, it can
be well ascertained that how much a tender mind of young girl is
being spoiled by none other than her own father!
36..............He created so much fear psychosis in the mind of Riddhi
that she was afraid of sleeping at night in her home and used to
sleep at the home of nana and naani. She has become terrorized to
see her father’s violence after consuming drinks and even the sexual
violence at midnight which had become a regular affair.
44.Contents of this para are wrong and denied. It is denied that the
respondent had deserted and withdrawn from the society of the
petitioner for the last more than 2 years immediately preceding the
filing of the present petition, though the parties were living under the
same room till 02.10.12, but as mentioned above there was no
physical relationship between the parties as husband and wife, with
the object to end cohabitation and during this period efforts were
made or reconciliation but the respondent has refused to reconcile the
matter and further told that she has severed up all his relations and
connections with the petitioner and she is not interested to live with
the petitioner even for a single day. It is submitted that the parties
lived together as husband and wife till August 2012, when the
petitioner broke all moral limits by showing his extreme lush and
vulgar attitude in front of Riddhi, the minor daughter of the parties
which compelled the respondent to distance herself and her
daughter from the petitioner so that the innocent and minor
daughter of tender age is not affected psychologically due to the
immoral behaviour of her father in her formative years of age.
45.Contents of this para are wrong and denied. It is denied that
respondent has deserted and withdrawn from the society of
respondent for more than two years and during this period, efforts
were made for reconciliation but proved futile. It is submitted that
the parties are virtually separated from August 2012, when the
petitioner portrayed his characterless behaviour towards the
daughter of the parties.’
IN COUNTER CLAIM
‘XII. That the petitioner crossed all limits of decency by not even
sparing her daughter who is now 8 years old by keeping obscene
books in the clothes Riddhi, condoms in drawers etc. It is a
shameful and most immoral act of the petitioner by victimizing his
own daughter by his uncontrolled lust! Not even this, he used to
wake respondent up at midnight for sexual intercourse and even
wake up the daughter of the parties and used to ask her to witness
the sexual acts and advances which he was making to the
respondent. Thus, it would not be an exaggeration to conclude that
he had become sexually so perverse and characterless that he even
didn’t realize that what effect shall be borne by the daughter of the
parties who is growing up. The petitioner even didn’t hesitate to
make his daughter ashamed in front of her friends by humiliating
her in their presence. He even said once, “AGAR YEH MRI BAAT
NAHI MANEGI TO MAIN BAHAR KI AURAT KE PAAS
JAUNGA AUR USSI KE PAAS RAHUNGA”. The daughter,
Riddhi once asked, “MUMMY, JAB PAPA AAPKO CHEDTE
HAIN TO KYA AAPKO BURA NAHI LAGTA KYA?”. From this
fact, it can be well ascertained that how much a tender mind of
young girl is being spoiled by none other than her own father!’
XV. That the petitioner came at 11:30 p.m. in the night of
1.10.12 and was in highly inebriated condition. The
respondent/counterclaimant gave him the keys of C-719, i.e. the house
of the parties, so that he could go and sleep but the petitioner refused
to leave and started misbehaving and abusing the parents of the
respondent without any rhyme or reason. He even assaulted the
father of respondent and manhandled him which caused multiple
bruises to him and also his clothes were torn. Thereafter, he came on
the street and started abusing and shouting the
respondent/counterclaimant and her family members and created an
ugly scene. The neighbours warned him to stop creating such a scene
by telling him that it is a crime to be drunk and create a scene on
street. Finally PCR was called and the petitioner was taken to the
Police Station and he begged pardon in front of police from the
father of the respondent, so the father of the respondent did not
lodge any complaint and he was released after warning.
XVI. That the parties lived together as husband and wife till
August 2012, when the petitioner broke all moral limits by showing
his extreme lust and vulgar attitude in front of Riddhi, the minor
daughter of the parties which compelled the respondent to distance
herself and her daughter from the petitioner so that the innocent
and minor daughter of tender age is not affected psychologically due
to the immoral behaviour of her father in her formative years of
age. Not only this, from Oct. 2012, the petitioner stopped paying the
instalments to the builder of the flat booked at Indirapuram,
Ghaziabad, by the parties which instalments he was paying through
bank as he got a loan sanctioned in his favour on basis of his
handsome salary. The purpose was to debar the respondent from
the 50% ownership of the property. He even approached the builder
to cancel the booking and approached the banks to stop paying the
instalments.
XVII. That it is the respondent/counterclaimant who has suffered
extreme harassment and cruelties at the hands of the petitioner and
she does not want that the petitioner should interfere in her as well
as her daughter’s life and thus, she has sought the relief of judicial
separation and do not want divorce as she does not want to remarry
and wants to live her life for the sake of her daughter and she also
wants that she should not become the cause for embarrassment for
her growing daughter at later stage of life by becoming a divorcee
and causing a lifetime complex in the mind of her daughter. Hence,
this petition.’
9. In the affidavit Ex.RW1/A filed by the wife, she has preferred to
observe silence about the serious allegations made against the husband. The
admissions made by the wife during her cross examination being relevant,
her cross examination is extracted hereunder:-
‘.......I have mentioned in my affidavit that the petitioner family along
with the petitioner treated me with cruelty, whenever the petitioner
come from the tour they spent more of the time with their parents
instead of me and my daughter. I have not placed the copy of the
complaint dated 31.08.2012 and if the Court directs me, I shall place
the same before the Court. It is wrong to suggest that no incident was
ever happened on 31.08.2012 or that the fact stated in para no.16 of
my affidavit is totally false. I have not mentioned the date in para
no14 of my affidavit regarding the mediator. However, their names
are Mr.Goyal, Mr.Malhotra and my family members were also
present, who advised the petitioner to mend his ways. I have two
brothers, beside me. Both are married. They are living separately
from my father. Mr.Mukesh – Brother is residing in Dwarka and
Mr.Yogesh – Brother is residing in Shakarpur, with their families.
Mr.Goyal is the neighbour of the petitioner and Mr.Malhotra is the
colleague of the petitioner. It is wrong to suggest that no such
mediation was ever happened, as mentioned in para no.-14. As per
the MOU, the petitioner was required to transfer the car bearing no.-
3259 in my name and I have already sold the same. I do not
remember, whether, I had filed the copy of complaint dated
01.10.2012, as mentioned in para no.-17 of my affidavit. It is wrong
to suggest that on 01.10.2012, no such incident was ever occurred, as
mentioned in para no.-17 of my affidavit. It is correct that I have not
mentioned in my affidavit regarding the incident, as mentioned in
para no.-34 of my written statement, due to the reason that I shall not
repeat the same in my affidavit and I have only mentioned in para
no.-18, that the petitioner broke all moral limits by showing his
extreme lust and vulgar attitude in front of my minor daughter. It is
wrong to suggest that I have not mentioned all the allegations, which I
have mentioned in my written statement in my affidavit, only due to
the reason that these incidents have never happened. It is wrong to
suggest that I have levelled all the allegations upon the petitioner with
intention that I do not want to live with the petitioner and I have also
poisoned my daughter to hate the petitioner and not compel to live
with the petitioner. It is correct that I wanted a Judicial separation
from the petitioner and I have filed a petition for judicial separation
also. Doing the Counselling by the Hon'ble Judge, I have make up my
mind that I shall withdraw my Judicial Separation and trying for
living together and I can give him another chance for living together,
if he mend his ways, the petitioner shall leave his drinking and take
care of the child. It is wrong to suggest that the petitioner was not
consuming liquor. It is further wrong to suggest that the petitioner
was taking care of the child. The petitioner is in touring job and
generally remains on tour about 10-15 days in a month. For the
physical, mental, emotional and overall growth of my child, I want all
of us to live together.’
10. Proceedings dated September 17, 2013 before learned Judge, Family
Court records that the application under Order 14 Rule 5 CPC was filed by
the husband that issues on counter claim have not been framed. The Court
directed separate file in respect of counter claim to be prepared by the
Ahlmad and register it as per rules to be placed before the Court on the next
date of hearing i.e. December 12, 2013 with HMA Petition No.289/2014
which was also listed for petitioner’s evidence. Thereafter the LCR is silent
about the fate of counter claim except that during her cross-examination
dated May 17, 2016 the wife stated “For the physical mental, emotional and
overall growth of my child, I want all of us to live together.”.
11. It is an admitted situation that the wife while tendering her
examination-in-chief by way of evidence omitted to refer any of the above
accusations imputed against her husband. This omission, however, does not
dilute the act of cruelty committed by her for the reason that such
accusations do form part of the record.
12. In the case reported as AIR 2003 SC 2462 Vijaykumar Ramchandra
Bhate vs. Neela Vijaykumar Bhate the Supreme Court held that subsequent
withdrawal of allegations by amending written statement by the spouse is of
no consequence. In the said case, the husband made allegations against the
character of his wife blaming her to be having extra relationship. These
allegations were withdrawn by him by seeking amendment in the written
statement. The Apex Court while observing that making such serious
allegations against the character, honour and reputation of a spouse
constitute mental cruelty, held as under:-
‘11. That apart, in our view, even the fact that the application for
amendment seeking for deletion of the accusations made in the written
statement was ordered and amendments carried out subsequently does
not absolve the husband in this case, from being held liable for having
treated the wife with cruelty by making earlier such injurious
reproaches and statements, due to their impact when made and
continued to remain on record. To satisfy the requirement of Clause
(i-a) of Sub-section (1) of Section 13 of the Act, it is not as though the
cruel treatment for any particular duration or period has been
statutorily stipulated to be necessary. As to what constitute the
required mental cruelty for purposes of the said provision, in our
view, will not depend upon the numerical count of such incidents or
only on the continuous course of such conduct, but really go by the
intensity, gravity and stigmatic impact of it when meted out even once
and the deleterious effect of it on the mental attitude, necessary for
maintaining a conducive matrimonial home. If the taunts, complaints
and reproaches are of ordinary nature only, the Courts perhaps need
consider the further question as to whether their continuance or
persistence over a period time render, what normally would,
otherwise, not be a so serious an act to be so injurious and painful as
to make the spouse charged with them genuinely and reasonable
conclude that the maintenance of matrimonial home is not possible
any longer. A conscious and deliberate statement leveled with
pungency and that to placed on record, through the written statement,
cannot so lightly be ignored or brushed aside, to be of no
consequence merely because it came to be removed from the record
only. The allegations leveled and the incidents enumerated in the case
on hand, apart from they being per se cruel in nature, on their own
also constitute an admission of the fact that for quite some time past
the husband had been persistently indulging in them, unrelated and
unmindful of its impact. That the husband in this case has treated the
wife with intense cruelty is a fact, which became a fait accompli the
day they were made in the written statement. The continued on record
at any rate till 5.10.1988 and the indelible impact and scar it initially
should have created, cannot be said to have got ipso facto dissolved,
with the amendments ordered. Therefore, no exception could be taken
to the courts below placing reliance on the said conduct of the
appellant, in this regard, to record a finding against him.’
13. In view of Section 20(2) of Hindu Marriage Act, 1955 the allegations
made in written statement and counter claim can be safely accepted and
admitted as evidence of cruelty committed by the wife. The pious
relationship between a father and a daughter has been maligned by the wife
to such an extent that the wife is guilty of treating the husband with worst
form of mental cruelty. The nature of allegations made against the husband
which remained unsubstantiated, must have left an indelible mark on the
mind of the husband. No spouse can swallow such filthy allegations and
also continue with the marital tie.
14. The husband had already given another trial to this marriage by
entering into MOU and also substantially complying with the terms of the
settlement. He had already travelled an extra mile as despite being the only
son, he left his parents in Shalimar Bagh and shifted to a small premises in
Shakarpur which was owned by the parents of his wife and was near her
parental home.
15. It sounds paradoxical that wife was not letting the husband to have
physical contact but the husband was blamed for keeping condoms
accessible to their eight years old daughter and also for waking up the
daughter in the midnight to witness their sexual activity. The allegations of
sexual perversity against the husband amounted to mental cruelty justifying
a decree of divorce. It may also be recorded here that the wife despite filing
a counter claim seeking judicial separation neither got any issue framed on
that nor led any evidence. Rather by stating that ‘For the physical mental,
emotional and overall growth of my child, I want all of us to live together.’
in her cross examination she had taken a stand which is in conflict with her
plea in the counter claim that ‘she does not want that the petitioner should
interfere in her as well as her daughter’s life and thus, she has sought the
relief of judicial separation and do not want divorce as she does not want to
remarry and wants to live her life for the sake of her daughter and she also
wants that she should not become the cause for embarrassment for her
growing daughter at later stage of life by becoming a divorcee and causing
a lifetime complex in the mind of her daughter’. We are unable to perceive
how these two situations can be reconciled.
16. Learned Judge, Family Court failed to consider the effect of serious
accusations made by the wife against the character of husband even towards
his daughter who was a child aged about 8 years at that time. The wife
inspite of making serious allegations against the husband impacting his
moral character with perverse sexuality did not even try to prove such
allegations while tendering her affidavit by way of examination-in-chief.
This leads to the inference that such allegations were baseless.
17. After contesting the suit tooth and nail and even filing the counter
claim seeking judicial separation for the sake of child, if during her cross
examination she offered to live with the husband alongwith child for the
welfare of the child, it must be held to be a pretended concession after
committing the cruelty for frustrating the claim of the husband. The wife
herein has damaged the very basis of fabric of this marital bond beyond
repair. We, therefore, find no reason to interfere with the impugned
judgment and decree dated July 21, 2016.
18. The appeal is dismissed.
19. No costs.
20. Trial Court Record be sent back alongwith copy of this order.
PRATIBHA RANI
(JUDGE)
PRADEEP NANDRAJOG
(JUDGE)
OCTOBER 27, 2016
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