this appeal, primarily, on two counts viz firstly, the unilateral
withdrawal of consent by the appellant which rather lead to an
anomalous situation where the respondent wife, a law-abiding lady,
adhering to the terms and conditions of settlement, dated May 24,
2014 was left high and dry with a dead marriage and whereas the
appellant husband kept on enjoying his freedom without paying any
maintenance, alimony etc. and; secondly, the apology letter Mark A
which rather proves the contentions of the respondent that the
appellant used to beat her; did not allow her to visit her home; cast
aspersions upon her character; snatched her salary; took money from
her father, which he did not return and rather asked for dowry, thus
committed cruelty upon her. We agree with the learned Judge, Family
court, Dwarka, on both these counts. The allowing of complaint case
No.1007/1/2015 further confirms the case of the respondent.
23. Here we would like to refer to (2007) 4 SCC 511 Samar Ghosh
vs. Jaya Ghosh wherein it was held that there can never be any
straight jacket formula or fixed parameters for determining the mental
cruelty in matrimonial matters. If on consideration of complete
matrimonial life of the parties, actual mental pain, agony and
suffering as would not make possible for the parties to live with each
other would come within the broad parameter of mental cruelty. It
was further held that where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial bond is
beyond repair. The marriage rather becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in such
cases, does not serve the sanctity of marriage; on the contrary, it
shows scant regard for the feelings and emotions of the parties. In
such like situations, it may lead to mental cruelty.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered On : December 08, 2016
MAT.APP.(F.C.) No.163/2016
RAJIV CHHIKARA Vs SANDHYA MATHUR
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE YOGESH KHANNA
1. The appellant and the respondent entered into marital bond on
March 12, 2004 in accordance with Hindu rites and ceremonies in
Delhi. Their relations soon became sour and the respondent herein
filed a petition for divorce under Section 13(1)(ia) of HM Act
alleging that there has always been a demand of dowry from the side
of the appellant and that he took away all her money; used to lock her
in the room before leaving for his job; beat her and ridicule her before
his friends. As facts goes, immediately after their marriage, they both
shifted to District Kannaur, Himachal Pradesh where the appellant
was serving as an assistant teacher in Central School, at Recknong
Peo, District Kinnaur, Himachal Pradesh. They lived there till May
27, 2004 when the respondent returned to Delhi to stay with her
parents. The appellant also resigned and came to Delhi. On
December 26, 2004 a male child was born to them.
2. They both got job as teachers in Delhi and went on to live in a
rented house in Saad Nagar, Delhi for some time. Then they shifted
to a rented house at Dwarka, Delhi. However, per allegations of the
respondent herein there was no change in the behavior of the
appellant, who allegedly used to take drinks; beat her and that on
August 07, 2009 left the respondent in her matrimonial home and
took away his son to stay with his parents at village Jonti, Delhi. He
also took away all her belongings and household items. Though, he
returned at night, but left the next day i.e. on August 08, 2009, never
to join the company of his wife and that she lived all alone thereafter.
The respondent was always apprehensive of the appellant that he may
end her life.
3. The appellant in his pleadings denied allegations of cruelty and
rather alleged that the issues were trivial arising out of child care,
upbringing, interference of her parents, her repeated demand to live
near her parents, her refusal to take care of the respondent’s elderly
and ill parents etc. The appellant stated that he performed all his
martial obligations whole heartedly towards his wife and in-laws and
did whatever was expected of a husband and that he always took care
of his wife and son and since he is a heart patient, the respondent
herein was getting rid of him by filing divorce.
4. The appellant herein examined himself as RW1; whereas the
respondent herein examined herself as PW1. In their evidence each of
them denied allegations made against each other and rather espoused
their cause.
5. The respondent as PW1 reiterated the averments made in her
pleadings and deposed about demand of diamond ring, an Ascent car
by the appellant and his family members. She deposed that on March
17, 2004 they shifted to District Kinnaur, Himachal Pradesh, where
appellant was posted as an Assistant Teacher and that he took all her
belongings; did not give her pocket money; used to lock her in house
while going to his job; beat her mercilessly; used to boost about his
relationship with other ladies etc. She further deposed that on April
17, 2004 she came to Delhi to appear in an examination and while
returning to District Kinnaur on May 01, 2004, she constantly was
vomiting in the bus but the appellant sat on another seat and did not
even ask her for any medicine or tea.
6. The respondent also deposed that appellant used to cast
aspersions on her character and used to remark that she looks like
mother of two kids and definitely had physical relations with
someone. He used to comment that she is worst than whore. The
respondent also deposed that her father purchased her a LIG flat at
Sector 2, Rohini for ₹ 6.40 Lac, which they sold and then purchased a
flat at Dwarka in the joint names of the appellant and the respondent
and even at that time her father contributed ₹2.60 Lac. However, the
appellant did not return the money to her father.
7. She further deposed that both of them got employed in Delhi
and shifted to rented accommodation in Gali No.2, Saad Nagar, New
Delhi and stayed there till July 31, 2006, when he left her to stay with
his parents at Village Jonti. During their stay in such rented house the
appellant levelled unfounded allegations on her character; abused her;
surpassed all limits of decency and often threatened to kill her.
Various meetings of elders were held but the appellant did not mend
his ways and as a last resort to save her marriage, she shifted to a flat
at Dwarka with him on November 11, 2006, but only after lodging a
report at PP Mangla Puri, Delhi. (The report, however is not on
record). Even during her stay in Dwarka, the appellant would leave
her alone for days together; used to take her salary; call her Awara,
prostitute etc. Even on April 25, 2009, the appellant assaulted her and
when she called her father, grappled with him too. She spent that
night outside in a verandah. PW1 further deposed that on August 07,
2009 the appellant packed his bags, took their son to Village Jonti,
Delhi; returned that night; meted same treatment to her and finally left
her alone on August 08, 2009. The respondent stayed for sometime at
Dwarka and then shifted to her parents’ house.
8. The respondent further deposed that it is no longer possible for
her to live in the company of the appellant and she apprehend danger
to her health and personal safety, the appellant though later gave an
apology letter dated June 18, 2010, Mark A to the Assistant
Commissioner of Police, CAW Cell, Dwarka, New Delhi to save his
skin. In cross-examination she though admitted that the appellant
herein would take her for outings on LTC tours but denied
suggestions put to her on all crucial issues viz. of beating her, casting
aspersions, not repaying money to her father, raising demand of
dowry or salary etc. The respondent admitted that in the year 2011
she did attend the marriage of her devar but because of the above
reasons.
9. The appellant examined himself as RW1 and deposed that there
were no such issues which could not have been sorted out between
him and his wife and that the respondent and her family had been
torturing him. He deposed that he never had beaten his wife nor he
ever casted aspersions nor ever demanded dowry etc. He deposed that
as he was suffering from heart decease and as the respondent was not
inclined to stay with his parents the dispute arose. He also deposed
that the respondent always doubted that he was involved with
Ms.Mridula, a teacher, but she was like an elder sister to him. He
denied taking any money from his father-in-law for purchasing
property. He further deposed that on April 24, 2009, when he failed
to attend the Tehrvi of the maternal grandmother of his wife, her
parents came to his flat, assaulted him mercilessly and he lodged a
complaint to police. However, he failed to prove it on record.
Nevertheless, he admitted of writing a letter Mark A to Assistant
Commissioner of Police, CAW Cell, Sector 9, Dwarka, Delhi, though
alleged that he had written it only to pacify the ego of his wife and to
save the marriage between them. In his cross-examination he
admitted having not filed any document relating to his heart ailment;
and also that he did not file any complaint qua any coercion while
writing an apology letter Mark A or of being assaulted mercilessly by
respondent’s father.
10. In the light of the facts stated above, we would now like to read
letter Mark A which is as under:-
(Translation)
“To
The ACP
CAW Cell
Sector 9 Dwarka,
Subject : Compromise Letter
Respected Sir,
In order to compromise with my wife I
am ready to submit the following
undertakings:-
1 I apologize for all my mistakes. I have
beaten my wife, but now I would never raise my
hand on her.
2 I had casted aspersions on my wife’s
character. I am sorry for the same and would
not do so in future.
3 I am ready to return the money of my
father- in-law after selling my flat.
4 I would not never raise any demand for
any goods or money from my wife.
5 I would never refuse my wife to visit her
parent’s or her relatives.
6 I would not take a single penny from the
salary of my wife.
I hope that my wife would be satisfied
with above and our child would get the
company and love of both his parents.
Thanking you in anticipation.
Yours faithfully
Dated: 18.06.10
Sd/-
(Rajiv)”
11. In the apology letter Mark A, as reproduced above, appellant
categorically admitted that he would never beat his wife in future nor
would make frivolous allegations upon her character; would return
the money he took from his father-in-law; would never demand
money or goods from his wife and would also not ask for his wife’s
salary. The letter Mark A is in absolute consonance with the
allegations levelled against him by the respondent in her divorce
petition also in her deposition as PW1, and hence it was so relied
upon by the learned Judge, Family Court, Dwarka, Delhi to be one of
the cogent grounds for divorce granted by him on June 08, 2016 in
HMA No.463/09.
12. Though, the appellant argued that the apology letter Mark A
was written by him only to satisfy false ego of his wife and to save
their marriage, but he did not produce any witness that he was ever
coerced to write Mark A. On the contrary, during his crossexamination
recorded on February 14, 2014, he admitted the presence
of his father in CAW Cell by saying that his father also gave
statement to the CAW Cell and that he too was pressurised. Strangely
enough, his father did not enter the witness box to support his son, the
appellant on this issue.
13. Thus, the explanation given by the appellant is not worthy of
any credence especially in the absence of deposition of his own
father.
14. On the contrary the cross-examination of the respondent herein
rather revealed that such letter Mark A of dated June 18, 2010 was
written voluntarily by the appellant and that she never compelled him
to write such letter or that he ever made a verbatim copy of her
alleged hand written note.
15. On bare reading of the letter Mark A, admittedly to be in the
hand writing of the appellant herein, we are of the view that no
prudent man would write such an apology for the acts he never
committed. At least he would never admit beatings to his wife;
snatching her salary, or making dowry demands, lest these assertions
have an element of truth or feeling of remorse. Hence, the argument
put forth by the learned counsel for appellant to wriggle out of his
admission by saying that such writing was merely to satisfy the ego of
the respondent herein appears to be frivolous. The contents of the
letter Mark A rather proves the case of the respondent.
16. Additionally, we also take note of the fact that the appellant had
entered into a settlement with the respondent, duly recorded in their
joint statement dated May 24, 2014, they made before the learned
Judge, Family Court, Dwarka, Delhi in petition HMA No.337/2014
under Section 13 (B)(1) of the HM Act. The terms and conditions of
such settlement, per Settlement Deed (Ex.C-4) are as under:-
“1. It has been mutually agreed between us that
petitioner no.1 shall not claim any monetary benefit
from petitioner No.2 towards the full and final
settlement amount including permanent alimony,
maintenance (past, present and future) or any other
amount claimed under any other head including
jewellery/articles/ istridhan/ goods etc.
2. It has been mutually agreed between us that the
custody of the child namely Kartikya shall remain
with the petitioner No.2/father and petitioner
No.1/mother has no visitation rights to meet the
child.
3. It has been mutually agreed between us that
petitioner No.1 shall withdraw her case pending
under Section 13(1) (ia) bearing HMA No.463/09
and if petitioner No.2 fails in co-operating in
tendering his statement during the second motion in
that event the said petition will be resorted to its
original stage/position.
4. It has been further mutually agreed between us
that petitioner No.1 shall withdraw her case pending
under Domestic Violence Act, within a week after
recording of statement of second motion.
5. It has been further mutually agreed between us
that petitioner No.1 shall co-operate in quashing of
FIR bearing no.195/10, PS Palam within a month
after recording of statement of second motion.
6. It has been further mutually agreed between us
that we shall withdraw our all respective cases filed
against each other or family members, if any.
7. That the above settlement is arrived at between
the parties out of their free will and without any
coercion, fraud and force from any corner.
8. We have also agreed that we shall not file any
sort of litigation in future relating to this marriage.
9. Both the parties will be bound by the terms and
conditions of the mutual consent petition and
settlement deed Ex.C-4.”
17. On the basis of the settlement incorporated in the joint
statement, their petition under Section 13 (B-1) of the HM Act was
allowed by the learned Family Judge, Dwarka Court, New Delhi on
May 24, 2014 and they both were advised to make efforts for
reconciliation or revival of their matrimonial home and in case they
fail or wish to part ways permanently, they may approach for
dissolution of their marriage, per Section 13 (B-2) of the HM Act on
the basis of mutual consent.
18. Admittedly, the petition under Section 13 (B-2) of the HM Act
was also filed before the learned Judge, Family Court, Dwarka, Delhi,
but when it came up for hearing on October 29, 2015, the appellant
herein rather made a statement that he does not intend to proceed
further in the petition and hence withdrew his consent for divorce by
mutual consent. The said petition, thus, was held to be nonmaintainable
and was dismissed as withdrawn.
19. It was a unilateral withdrawal of the consent by the appellant,
despite the fact that the respondent was always willing to abide by the
terms and conditions of the Settlement Deed dated May 24, 2014
Ex.C-4, entered in the joint statement recorded on the same day and
the respondent herein did not claim permanent alimony/maintenance
or the custody of her son. The second motion, though was filed just
before the expiry of 18 months statutory period, but the appellant
despite enjoying the benefits of settlement, put the respondent in a
disadvantageous position and caused her mental cruelty and financial
losses. An order dated January 23, 2016, of the learned Family Court
proves the respondents’ voluntarily giving up of her claim of alimony
and that she honoured her commitment arising out of the settlement
dated May 24, 2014. Thus, the withdrawal of consent by the appellant
herein without any sufficient or just cause, in the circumstances
explained above, rather added to the cruelty meted to her.
20. Though the appellant asserted his right to withdraw his consent
at any time prior to the divorce being granted by mutual consent, but
the fact is where he has entered into a settlement with his wife and
there being no allegation that he ever signed such settlement due to
force, fraud or under influence and also when the respondent had
acted upon such settlement by withdrawing her divorce petition;
foresaking her claim to custody of their son and of her permanent
alimony then the withdrawal of consent would have a different
connotation as it adds to the misery of the respondent.
21. We also note that a Complaint case viz. No.1007/1/2015 under
Section 12 of the Domestic Violence Act, filed by the respondent
against the appellant herein also was allowed vide order dated May
31, 2016 of the Court of learned MM, Delhi wherein the appellant
was directed not to commit any acts of domestic violence; not to
contact the respondent directly and also to pay her the compensation
of ₹ 10,000/- which he had not paid till date. Admittedly, this order
dated May 31, 2016 is not challenged uptill now and had attained the
finality.
22. Thus, we are of the considered opinion that there is no merit in
this appeal, primarily, on two counts viz firstly, the unilateral
withdrawal of consent by the appellant which rather lead to an
anomalous situation where the respondent wife, a law-abiding lady,
adhering to the terms and conditions of settlement, dated May 24,
2014 was left high and dry with a dead marriage and whereas the
appellant husband kept on enjoying his freedom without paying any
maintenance, alimony etc. and; secondly, the apology letter Mark A
which rather proves the contentions of the respondent that the
appellant used to beat her; did not allow her to visit her home; cast
aspersions upon her character; snatched her salary; took money from
her father, which he did not return and rather asked for dowry, thus
committed cruelty upon her. We agree with the learned Judge, Family
court, Dwarka, on both these counts. The allowing of complaint case
No.1007/1/2015 further confirms the case of the respondent.
23. Here we would like to refer to (2007) 4 SCC 511 Samar Ghosh
vs. Jaya Ghosh wherein it was held that there can never be any
straight jacket formula or fixed parameters for determining the mental
cruelty in matrimonial matters. If on consideration of complete
matrimonial life of the parties, actual mental pain, agony and
suffering as would not make possible for the parties to live with each
other would come within the broad parameter of mental cruelty. It
was further held that where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial bond is
beyond repair. The marriage rather becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in such
cases, does not serve the sanctity of marriage; on the contrary, it
shows scant regard for the feelings and emotions of the parties. In
such like situations, it may lead to mental cruelty.
24. Moreso, irretrievable breakdown of marriage is though not a
ground for divorce, but per judgments reported as 2006 (2) Mh. LJ
307 Madhvi Ramesh Dudani vs. Ramesh K Dudani; and 2007 (4)
KHC 807 Shrikumar V. Unnithan vs. Manju K Nair, the concept of
cruelty has been blended by the Court with irretrievable breakdown
of marriage.
25. In MAT.APP.(FC) 36/2014 decided by this Court on October
21, 2016 Sandhya Kumari v. Manish Kumar, it was held that where it
is not possible for the husband and wife to live together except by
indulgence in mutual bickering targeting each other mentally,
insistence by one to retain matrimonial bond would be a relevant
factor to decide on the issue of cruelty, for the reason the obvious
intention of said spouse to continue with the marriage is not to enjoy
the bliss thereof, but to torment and traumatize each other.
26. Similar is the situation in the present case, the parties are living
separately since the year 2009 and considering the conduct of the
parties, there seems to be no possibility of their joining together so to
insist to retain this matrimonial bond in the circumstances stated
above would rather be putting the respondent under intense mental
cruelty.
27. Thus, the totality of the evidence, establishes the mental cruelty
upon the respondent by the appellant herein and as such, there is no
infirmity in the impugned judgment passed by learned Judge, Family
Court, Dwarka, Delhi. The appeal is thus dismissed.
28. No costs.
(YOGESH KHANNA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
December 08, 2016
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