Full Text
CM 7057/2013(delav)
PUSHPA RAJAI Appellant
Through : MrJai Bansal, Advocate.
Through: Nemo Respondent
HON'BLE MR, JUSTICE NAJMIWAZIRI MR. JUSTICE NAJMI WA7TRT
JUDGMENT
1. This is amatrimonial appeal arising out ofjudgement and order of the Family Court dated ll^*" February, 2013 in HMA NO. 686/2010 ("impugned order") whereby the marriage between the parties was dissolved on grounds of cruelty. The divorce petition filed under Section 13 (1) (a) of the Hindu Marriage Act, 1956 by the respondent/husband had alleged a number of acts of cruelty, inter alia, of (a) the appellant/v/ife being Mat.App.(FC) 3/2013 Page 1 of19 2013:DHC:7095-DB quarrelsome and non cooperative towards him and his family members; (b) her confiding that the marriage was against her wishes and not to aperson of her choice; (c) her inability to respect him and his family members; (d) constant pressurismg by her for living separately; (e) her visiting her maternal home frequently, where she stayed for months together and her quarrelling whenever the issue was raised by the respondent/husband; (f) herbeing inhospitable to guests; (g) her rude and indiscreet conduct towards his friends, and to relatives and neighbours; (h) denial ofconjugal relationship; (i) constant tlireats to commit suicide and implicate him and his family members in criminal cases in case her demands were not met; (j) frequent visits by the elder sister of the appellant/wife who interfered in their day-to-day life; (k) compelling the respondent/husband to leave his job in Muscat and moving to Ahmedabad where he had extreme difficulty in finding ajob; (1) forcing him to hand over his entire salary to her, etc. The husband had contended that despite his according her due care and affection and ensuring proper medical care during her MatApp.(FC) 3/2013 pregnancy, she was adamantly quarrelsome and left the matrimonial home alongwith her child on 4* November, 2011. He had further contended that she repeatedly complained to the police, alleging harassment by and concocting false cases against the respondent/husband and his family members. On 14^ February, 2002, she received her entire ]QVjQ\\Qrylstridhan pursuant to a case she had filed in Bhavnagar (Gujarat) under Section 114 IPG and sections 3 and 7 of the Dowry Prohibition Act. In another proceedings under Section 125 of Gr.P.G., she was awarded maintenance of Rs. 1,000/- per month for herself and Rs. 600/- per month for the minor daughter.
2. It further appears that the respondent/husband started living in Rohini from 15^*^ August, 2002 after he got a new job; the appellant/wife was still residing at her maternal home. On 19^^ January, 2005, the respondent/husband and his mother visited the appellant/wife at her maternal home and sought to bring her back, but she refused to join them. This effort was repeated by the respondent/husband on September, 2005, and after much persuasion, she did join him, but did not adjust with him. The Mat. App. (FC) 3/2013 Page 3 of19 respondent/husband had contended that she continued to be cruel to him and yet again left the matrimonial home on 23'"'^ September, 2005, alongwith the minor daughter. He had also contended that while leaving she threatened him for his life. A divorce petition was filed on 13* September, 2007 by the respondent/husband. However, the parties compromised their differences before the learned ADJ-1, Rohini, and started living ina rented accommodation in Sector 5in Rohini from 27'^ July, 2009, where the respondent/liusband's other family members also resided. However, even thereafter, according to the respondent/husband, the appellant/wife reftised to have any conjugal relationship (sexual relations) with him and continued to be haughty, quarrelsome and aggressive, while contemporaneously threatening to commit suicide by lighting a gas cylinder or pouring petrol on and setting fire to herself It had also been contended that she even alleged existence of an ilHcit relationship of the respondent/husband with his sister-inlaw (bhabhi) and with his niece. In view of the last allegation, the respondent/husband's brother shifted to another house on 8'^ Mat App.(FCJ 3/2013 Page 4 of19 July, 2010 too, so as to escape from the atrocities and uncouth behaviour of the appellant/wife, and also to safeguard his own family peace and dignity.
4. Before the Family Court, the appellant/wife had denied the allegations levelled against her. She contended that contrary to the petition, it was actually the respondenfliusband who inflicted cruelties upon her and her minor daughter. She had contended that (a) the respondent/husband and his family made unwarranted demands for a car and a flat in Delhi; (b) the respondent/husband assaulted her after a month of marriage; (c) she was starved of food and tortured for bringing inadequate dowry; (d) her health deteriorated and she was prevented from even talking with her family members over the telephone; (e) the respondent/husband had returned from Muscat only upon his parents' wishes so that he could be with him in their old age; (f) that he was disrespectful towards her and showed no affection towards their daughter, who was bom on 2'^^ April, 1999; (g) that she was assaulted on 4^^ January, 2001 and thrown out of the matrimonial house without any money. That Mat. App. (FC) 3/2013 Page 5 of19 however, with the passage of time and the intervention of family elderSj she returned to live with the respondent/husband. This, she underlines, occurred in particular because of the settlement before the ADJ-1, Rohini, recorded subsequently in his order of IT^ August, 2009. She had argued that the settlement agreement signified that the parties had forgiven and forgotten all the differences / cruelties between themselves, so that they could start their marital life afresh. She had denied the non existence of conjugal relationship between them. However, she claimed that she was humiliated and had to refrain from sexual relationship with him because the demand from the husband in this regard was unnatural. The Family Court considered the evidence led by the parties and framed the following two issues:
1. Whetherafter solemnization ofmarriage, the Respondent had treated thepetitioner with cruelty? OPP
2. Whetherthepetitioner is entitled to the decree of divorce After having considered the evidence led by the parties and their arguments, the Family Court found inter alia as under: Mat App.(FC) 3/2013 Page 6 of19
Mat.App.(FC] 3/2013 Page 7 of19 him. The fact that the Id. Counsel for the Respondent did not even put a bare sussestion to thepetitioner that they had normal physical relations —resularly and continuously, itself shows that the physical relatins ^sic; relation) between the two were not normal. The petitioner would therefore havefelt deprived ofmarital bliss and due to that reason, he may not have remained very affectionate to her.
38. [TJhe petitioner has established on record that the Respondent had levelled allegations of his having physical relations with he fsic; the) bhabhi (sister-inlaw) as well as his niece. TheRespondent, in her crossexamination, [tjestified that the petitioner used to sleep in her jethani's (sister-in-law's) used to feed her daughter. The Respondent has asserted that the petitioner had physical relation with his bhabhi. This, however, appears quite impropbable by any stretch of imagination. Admittedly, the brother of the Petitioner was living in the same accommodation and he would have never permitted the petitioner to sleep in his bed room. There could be no possibility of the petitioner having physical / sexual relations with his brother's wife - since his brother was staying in the same house. It. thus, becomes crystal clear that the Respondent had levelled false allesations a2ainst the petitioner. [...]
39. The term "mental cruelty " has been defined in the Black's Law Dictionary (^'^ Edition, 2004) as under:
40. "Mental Cruelty As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers Mat App. (FQ 3/2013 the life, physical health, or mental health of the other spouse." In VBhagat Vs. D. Bhagat, reported in II (!993) DMC 568 (SC), Hon'ble the Apex Court has observed as under: - "Mental Cruelty in Section 13(1) (i-a) can broadly be defined as that conduct which inflicts upon the other party such mentalpain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be ofsuch as nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put-up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health ofthepetitioner. " [...] 42....The Respondent has testified that the petitioner used to sleep in her iethani's (sister-in-laws) room. The Respondent even went to the extent ofallesins that the petitioner had illicit/physical relations with his own niece. It is evident that false and absurd allegations have been levelled by the Respondent. No mother and /or father would have let thepetitioner havephysical relations with their daughter in their own house. Further, it has come over the record that the Respondent even threatened the petitioner that she would not let the marriase proposal ofhis widow niece materialize by levellins allesations that he had illicit relations with her. Such allegations clearly reveal the mind-set ofthe Respondent. She appears to be a dead Mat.App.(FQ 3/2013 Page 9 of19 destructive person. She has not only created nuisance in the matiimonial home by levelling such false allegations but also, caused severe stress and strain to the petitioner. The brother ofthe petitioner left the said rented accommodation with his wife and daughter only because of the conduct / behaviour ofthe Respondent. This would have definitely affected the mind of the petitioner and he would havefound it difficult to stay with the Respondent in such circumstances. And this explains as to why the petitioner left the Respondent and her minor daughter. When I consider the versions ofthepetitioner andthe Respondent inthe light oftheir day to-day behaviour towards each other as well as their family members, I find the version of the petitioner much more probable than that of the Respondent. Infact, the version ofthe Respondent does not appeal to senses and rather, appears to be quite absurd.
43. Tl7e petitioner has brought over the record that the Respondent was non-cooperative towards him and his family members, right from the beginning of their married life. In fact, she had told him just after a month ofthe marriage thathe was nota person ofher choice and she was force[d] to marry him. She pressurized him to get separatedfrom hisparents and otherfamily members. Sheforced him to leave the job at Muscat and return toIndia. He had to take-up a new job at a lower salaiy. She threatened him to commit suicide bypouringpetrolover herselfor by lighting the gas cylinder etc. Ld. Counsel for the Respondent failed to put any suggestion to rebut the testimony of the petition regarding the relationship between the parties from the inception ofthe marriage till 23.09.2009. The Mat App. (FCJ 3/2013 Page 10 of19 said testimony, therefore, is deemed to have been admitted.
44. Ld. Counsel for the Respondent has contended that the petitioner had condoned the conduct/behaviour of the Respondent before 28.09.2009 and thereforef, any acts of cruelty (deemed admissions) are of no helv to him. I am, however, not in conformity with the Id. Counsel for the Respondent.
45. The term 'condo nation' fsic; condonation) means forgiveness of the matrimonial offence and the restoration ofthe offending spouse to the sameposition as he or she occupied before the offence was committed. To constitute [condonation], there must be two things - (i) forgiveness and (ii) restoration the evidence of [condonation] exists and is shown by the fact that the spouses lead a normal sexual life (despite Respondent's alleged acts of cruelty). (Reliance placed on Narain Ganesh Dastane vs. Suchitra-AIR 1975 SC1534).
46. It has come over the record that the respondent did not mend her behaviour towards the petitioner and his family members even after 28.09.2009. She continued to ill treat him. She threatened him of implication in false criminal /dowry cases. She threatened to commit suicide. She threatened to kill him and his family members also. In view of her aforesaid conduct and behaviour, the acts of mooission and commission on her part before 28.09.2009, get revived. Thepetitioner therefore, cannot be said to have condoned her acts and deeds before 28.09.2009. It has come over the record that there have been no physical relations between thepetitioner and the Respondent during the MatApp. (FQ 3/2013 Page 11 of19 last 8/9years oftheir stay together. Ld. Counselfor the Respondent failed to rebut the same by putting any suggestion. It therefore stands established that the petitioner and the Respondent did not have normal sexual life after 28.09.2009 also. I. accordingly, reject the contention of Id. Counsel for the respondent and hold that the petitioner had not condoned the conduce fsic; conduct) /behaviour of the Respondent towards him before 28.09.2009.
47. Considering the social and economic background of the parties, it becomes evident that the petitioner would have found it difficult to stay in the company/society ofthe Respondent. He would have to remain in constantfear to his own life as well as that of his brother, bhabhi and niece as well. She would havefound it difficidt to have a peached fsic;peaceful) sleep at night. Since the Respondent has threatened to implicate him and hisfamily members infalse criminal case. The fear of the petitioner cannot be said to be unfounded. Since theRespondenthas earlier got a case under section 498a/326/506 II IPC read with Section 114 IPC and Section 3 & 7 ofthe Dowry Prohibitions Act registered at Lady Police Station District Bhavnagar (Gujarat) on 15.1.2002 against the fsicj him and hisfamily members. Further, the respondent had continued to create scenes in the matrimonial home and here. She brought down the Petitioner in the eyes of his neighbours and others. He would have, definitely, suffered grave mental agony due to the acts ofomission and commission onpart ofthe Respondent 1.[1] therefore, hold that the Respondent has treated the Petitioner with cruelty after solemnization of the Mat App.(FQ 3/2013 Page 12 of19 marriage. The issue is, accordingly, decided against the Respondentand infavour ofthe Petitioner. (Emphasis suppHed)
7. Before this Court, learned counsel for the appellant/wife argues that the Family Court had erred in dissolving the marriage on the ground of cruelty as no cruelty existed after the parties had resolved to and resumed their marital cohabitation on 27^^ July, 2009 after recording ofthe settlement agreement, any allegation of cruelty prior to that date v/ould be deemed to be nonexistent and obliterated in view of the fact that the respondent/husband himself had agreed to disregard all such alleged prior incidents as may be. He had deposed before the ADJ-I, Rohini as under:- "Statement ofSh. Jai Prakash Lalwani S/o. Late Sh, Harkishan Dass, Age 38 years, R/o. €-9/144, First Floor, Janta Flats, Sector-5, Rohini, Delhi -110 085. Petitioner in person, on S.A. I have settled all my disputes with the respondent amicably out of court and now we both have been residing together since 27.07.2009. We both assured each other to lead a happy and pleasant matrimonial life. We both have assured each other to make maximum efforts in that respect. I do not want to pursue thepresent petition. Same may be disposed off as compromised. I am making thestatement voluntarily under no force, coercion, threat or any kind of pressurefrom any corner. Mat. App. (FC) 3/2013 8. RO&AC Sd/- (Pitainber Dutt) ADJ-l/Nonh-West/HMA Rohini, Delhi/22.08.2009 r|« r|% Statement ofMrs. Pushpa Rajai, W/0. Sh. Jai Prakash Lalwani D/o. Sh. Mohan Dass, Age 36 years, R/o. C- 9/144, firstfloor, Janta Flats, Sector-5, Rohini, Delhi- 110 085. Respondent in person on SA. I have settled all my disputes with the petitioner amicably out ofthe court and now we both are residing together since 27.07.2009. We both have assured each to lead a happy andpleasant matrimonial life. We both have assured each other to make maximum efforts in that respect. A criminal case under Section 498-A/406 IPC and complaint u/s. 125 Cr. P.C. have been pending before the court of Bhav Nagar, Gujarat. I shall cooperate with the petitioner to get the aforesaid proceeding quashed. I am making the statement voluntarily under noforce, coercion, threat or any kind ofpressurefrom any corner. Sd/- R.O.& A.C. (Pitamber Dutt) ADJ-l/North- West/HMA Rohini, Delhi/22.08.2009' The settlement order recorded as under:- Mat.App.(FQ 3/2013 Page 14 of19 "22.08.2009 Present: Counselfor thepetitionerwithpetitioner in person. ^ Respondentinperson. An application for seeking permission to withdraw the present petition has been filed by the petitioner. Ld. Counsel for the petitioner on instructions states that both the parties have settled all their disputes and claims amicably and both of them have ^ been residing together since 27.07.2009. Ld. Counsel for the petitioner on instructions submits that the presentpetition may be disposed offas compromised. Statement ofthepetitioner as well as respondent has been recorded separately. Both of them have categorically stated that they havesettledall their claims and disputes amicably and now both of them have been living together since 27.07.2009. Both the parties have assured each other to leada happy matrimonial life andto make maximum efforts in that regard. The petitioner hasfurther stated thatshe will cooperate with the respondent inquashing m the proceeding ofcriminal case u/s. 498A/406IPC as well as 125 Cr. P.C. pending in the court of Bhav Nagar, Gujarat. Both the parties prayed that the present proceedings may be dispose doff as compromised. In thefacts and circumstances, I am of the considered view that both the petitioner and respondent have settled their disputes amicably out of their own free will without there being any pressure from any corner and both of them already started residing together in their matrimonial home. In view of the above and statement of both the parties, present petition filed by the petitioner is Mat. App. (FQ 3/2013 15 of19 9.
10. disposed off as compromised. File be consigned to record room after due compliance. Sd/- (PITAMBERDUTT) ADJ-/North-West/HMA Rohini, Delhi/22.08.09" Thus learned counsel argued that the impugned judgement was without any basis having for dissolved the marriage on the ground of cruelty since all such acts of cruelty, whatever they may be, had been condoned by the husband and obliterated. This court has considered the material on record and submissions of the counsel for the appellant. This Court is conscious that the settlement order recorded before the ADJ-1, Rohini was to facilitate the withdrawal of the divorce proceedings that had been filed by the husband in 2007. However, since the parties had started residing together since 27.7.2009, the parties deemed itprudent and logical to end the haunt ofthe pending divorce petition. Evidently the withdrawal was premised on the hope that there would be a conjugal relationship between the parties thereafter. However, there was Mat App.(FC) 3/2013 Page 16 of19 >5 no such resumption let alone complete conjugal relationship. The parties merely cohabited. The Family Court, in the impugned order, concluded that there was no conjugal relationship between the parties for almost 8 to 9 years as the appellant/wife was living away from the respondent/husband at her matrimonial home in Gujarat or otherwise shunned physical relationship with him. The promise of marital cohabitation was reneged by the wife as she continued to refrain from physical intimacy with the husband. Till the pronouncement of the impugned judgement in 2013, the physical distance between the parties had remained the same;- Physical intimacy between a married couple is an essential aspect of marriage and consistent refrisal of physical intimacy strikes at the very root of the marital relationship.
11. A frill bench ofthe Supreme Court in the seminal Samar Ghosh v Jaya Ghosh, (2007) 4 SCC 511 had, after a detailed examination of the various authorities on the issue of what may amount to mental cruelty, as one of the instances of behaviour amounting to mental cruelty, held; Mat. App.(FC) 3/2013 Page 17 of19
101. No uniform standardcan ever be laid downfor guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeedingparagraphs are only illustrative and not exhaustive: [-.]
(xii) Unilateral decision of refusal to have intercourse for considerableperiod without there being anyphysicalincapacity or valid reason mayamountto mentalcruelty. [...]
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes afiction 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 regardfor thefeelings and emotions of theparties. Insuch like situations, it may leadtomental cruelty. The above dicta, in the opinion of this court, applies to the present matter on all fours.
12. Even assuming that the previous instances of cruelty had been obliterated in view of the settlement between the parties, the allegation of the respondent/husband having an illicit relationship with his sister-in-law and niece itself constitutes cruelty. The appellant/wife did not rebut this during her crossexamination. This manifestation of cmelty was inflicted upon the respondent/husband after the settlement agreement Mat.App.(FC) 3/2013 Page 18 of19 (condonation), and it continued till the impugned judgement was pronounced. The appellant did not condone this cmelty, which had also led to disruption of the family life of his relatives (brother's family had shifted out to save themselves from further insults and unwarranted ignominy). The Family Court, therefore, rightly returned the finding that the appellant/wife did not deny this allegation of cruelty. In view of the aforesaid discussion, this court is of the opinion that the impugned judgement of the Family Court is based upon sound evidence and the conclusions arrivedat arejust. The decision to dissolve the marriage on the ground of cruelty calls for no interference.
12. Consequently, the appeal has to fail and is accordingly dismissed. OCTOBER, 2013 Mat. App.(FQ 3/2013 NAJMIWAZIRI,J (JUDGE)
S. RAVINDRA BEAT, J
(JUDGE) Page 19 of19