Anuradha Jain v. Rajesh Kumar Jain

13. The respondent-husband appeared as PW-1 and examined the two other witnesses in support of his case. The appellant-wife appeared as RW-1 and also examined the witness from State Bank of India as RW-2 in support of the operation of the bank locker.

14. The learned Judge, Family Court observed that the allegations of the appellant being quarrelsome and cantankerous of having devastated the career of the respondent and of having been denied conjugal relationship were vague, lacking in material particulars and even if accepted, only constituted the normal wear and tear of a married life due to different perceptions of the spouses. However, admittedly, the appellant has got registered a FIR under Sections 498A/406 IPC pursuant to which, not only the respondent but his parents also remained in police custody for a night and they were granted bail on the next day. The trial of the respondent, his Digitally parents and married sisters continued for two decades. One of the sister was a practising Gynaecologist living in her matrimonial home at Jind, Haryana. The other sister was a qualified Chartered Accountant and was living at her matrimonial home at Ghaziabad, U.P. The sisters were settled in their matrimonial homes and there was no reason for them to instigate the respondent or their parents to claim dowry. Even if the sisters of the respondent were coming to their parental home, it was held that the allegations of harassment and instigation against the married sisters were untenable. The learned Judge, Family Courts observed that father of the respondent had retired as a Professor of Economics from Manipur University in the year 1982 and there was nothing in the evidence to prove the allegations of cruelty on account of alleged demand of dowry made against the respondent and his parents.

15. The learned Judge, Family Courts also found that the addition of the name of the appellant-wife in locker account rather reflected the faith that they had in the appellant and no harassment in the matrimonial home by the parents of the respondent-husband could be proved. Her allegations that she was not allowed to step out of the matrimonial home or was treated as an outcast was also disbelieved considering that she was working and had a place of work at ITO. The learned Judge, Family Court found that there could be no motive imputed to the respondent or his parents for naming their son as Anurag. Her allegations about the respondent-husband not being keen to have the child or that he tried to cause harm, was also disbelieved. It was thus, held that the respondent was able to prove that the appellant had treated him with cruelty and granted divorce under Section 13(1)(ia) of the Act, 1955. The learned Judge, Family Court also observed that the Digitally evidence on record established that the appellant-wife had deserted the respondent-husband two years before filing of the petition and thus, allowed the divorce on the ground of desertion under Section 13(1)(ib) of the Act, 1955.

16. Aggrieved by the Decree of Divorce, the appellant-wife has preferred the present Appeal.

17. Submissions heard of both the Counsel for the parties and record perused.

18. Before coming into the merits, it is necessary to ponder on the nature of burden of proof which rests on the petitioner in a matrimonial petition under the Act, 1955. Doubtless, the burden lies on the petitioner to establish his or her case, ordinarily, the burden lies on the party which affirms a fact and not on the party which denies it.

19. The next aspect for consideration is the “standard of proof” to be applied while ascertaining the allegations made in the petition. The normal rule in the civil proceedings is that the fact has to be established “on preponderance of probabilities”. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. The Court applies this test for deciding whether a fact in issue can be said to be proved.

20. In the case of Dr.N.G.Dastane Vs. Mrs. S.Dastane (1975) 2 SCC 326, the Apex Court succinctly explained that in establishing the preponderance of probabilities, the first step is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of Digitally probabilities, the Court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies.

21. Thus, within the wide range of probabilities in a matrimonial relationship and in the conundrum of conflicting claims, it is a difficult choice to make like separating the grain from the chaff, but it is this choice which ultimately determines where the preponderance of probabilities lies. A reference was made in Dastane (supra) to the observations of Lord Reid in Gollins vs. Gollins (1963) 2 ALL ER 966, 970 wherein it was observed that, “in matrimonial cases, we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people”. It was thus held that the Court while dealing with the matrimonial disputes is not concerned with an ideal husband or an ideal wife (assuming any such exist) but with the particular man and woman before it.

22. In the case of Vinita Saxena vs. Pankaj Dixit (2006) 3 SCC 778, the Apex Court has guided as to how one may proceed. It was observed that while considering the two sides of the parties, the question to be answered from the appellant side is whether the appellant ought to be called up on to endure the conduct? From the respondent‟s side, the question to be Digitally answered is was this conduct excusable? The Court then has to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person‟s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought to be called upon to endure.

23. The appellant/wife is a qualified Chartered Accountant working with the Institute of Chartered Accountants of India and got married to an equally educated and well placed respondent who was a MBBS Doctor and had completed his DNB Training Course from Sir Ganga Ram Hospital in September, 1994 and thereafter, pursued Post-Graduation from the said Hospital itself. The parties got married on 07.02.1993 and they were similarly placed in their educational backgrounds, belonging to respectable families. It is but natural for them to hope and expect that they have met their soul mates and would have a blissful happy married life, but unfortunately, the things were not as expected from the marriage of the two educated people.

24. According to the appellant-wife, while they were on their Honeymoon trip to Manali, the respondent disclosed that he was in love with a Manipuri girl which brought her world crashing down. The honesty of the respondent-husband in disclosing about his past cannot be termed as a shocking revelation which should have upset the appellant. Rather than viewing it as an act of developing confidence and sharing of their personal information, the appellant had tried to project as if the respondent was in an adulterous relationship, which was not so. Therefore, there can be no act of cruelty attributed on the part of the respondent merely because he chose to Digitally be honest in revealing about his past.

25. The main allegations levelled by the respondent-husband were that the appellant-wife was a quarrelsome,, rude and cantankerous lady who did not mingle with the relatives of the husband and give due respect to them and shirked from household works. Further, she displayed complete disinterest in discharging her household obligations making it difficult for him to complete his Post-Graduation.

26. The appellant-wife on the other hand claimed that she used to serve food to the respondent at odd hours because he was working in different shifts while doing the P.G.Diploma.

27. In any matrimonial relationship, it is expected that both husband and wife, especially, when they are educated would support each other more so in initial years while they are pursuing their further studies to get established in their respective careers. The appellant being in full time employment could not have been expected by the husband to do small household chores. Likewise, the appellant-wife could not have exaggerated expectations from her husband when it came to discharge of their routine inter se obligations. Being educated and not being confined only to the house, the parties were obviously involved in their career/job and had to adjust their matrimonial obligations within their job requirements. The assertion of the respondent-husband that the appellant failed to discharge the household chores, was as misplaced as the claim of the appellant that she was being harassed by the family of the respondent on the day to day basis.

28. In this context, it would be pertinent to mention that admittedly, soon after the marriage, the parents-in-law of the appellant added her name in the Bank Locker account permitting her to operate the said Locker in the name Digitally of the parents of the respondent. No parents-in-law who had any suspicion or animosity towards her daughter-in-law, would do so and that too, soon after the marriage. This conduct only reflects the faith and respect that the parents-in-law of the appellant had reposed in their daughter-in-law and also depicted their intention of willingness to make her part of the family. The plea of the appellant that this was pursuant to a conspiracy inter se the respondent and his parents, is absolutely not understandable. What could possibly have been the conspiracy if the appellant had been allowed to access the bank locker account of the respondent‟s parents, is hard to guess for anyone. Rather, this reflects the intention of the family of the respondent to accept the appellant as a part of their family.

29. The respondent had asserted in his testimony that the appellant was not inclined to have a child and had even consulted his sister who was a Gynaecologist to get the baby aborted. On the other hand, the appellant had claimed that it was the respondent-husband who was having no interest in the child and tried to get baby aborted by giving medicine in the name of pain killer but she refused.

30. Interestingly, she deposed that on 20.12.1993, the respondent made the appellant fall from his scooter causing dislocation of right elbow of the appellant. Her X-Ray was done without shielding her abdomen in fond hope that the Gynaecologist would advise her to get the baby aborted. The child was born on 02.08.1994 i.e. about 8 months after this incident. There is no evidence on record to show that the appellant was even aware of her pregnancy at that time. To claim that her X-Ray was done to expose her is totally a wild assertion, especially, because the X-Ray was to be done on the right elbow and not of the abdomen. Furthermore, if appellant was aware of Digitally her pregnancy, there was nothing which stopped her from disclosing this fact to the Doctor and to ensure that necessary directions were taken to cover her abdomen. The appellant is an educated woman and for her to put the blame on the respondent, is not only an act of recklessness but merely an attempt to create false allegations against the respondent.

31. Another incident around which both the parties had tried to alleged cruelty is the Mundan ceremony of the baby. The appellant had explained that the Mundan could not be done on 07.10.1994 as the child was barely 2 months & 5 days old and the skull skin of the child was too soft for the Mundan to be performed. She also admitted that Mundan ceremony was performed on 09.04.1995. She claimed that while getting the Mundan done, the respondent did not wait for her as she was in the bathroom. This is also the averment of the respondent that for more than half an hour, she remained in bathroom and did not come out to attend the Mundan ceremony. The appellant if aware that the Mundan ceremony was being performed, could have requested or have come out in time for the performance of the Mundan ceremony. It may be observed that Mundan ceremony does not get completed in two or five minutes. It takes reasonable time and the admissions of the appellant herself show that she, despite being present in the house did not join the Mundan ceremony. She cannot attribute her own acts of abstinence to the respondent.

32. Another interesting incident claimed as an act of cruelty committed by the respondent is that her name is Anuradha and she is fondly addressed as “Anu” since her childhood. Despite this, her parents-in-law allegedly named the child as Anurag with nick name “Anu”, which was done purposely to create a confusion between her name and that of the child. Again, there Digitally cannot be a more frivolous claim of cruelty that could have been made by the appellant, as it is difficult to comprehend, how keeping the name of child as Anurag with nick name “Anu” could have been an act of cruelty. It would be pertinent to note that the child was born on 02.08.1994 and the parties separated on 02.07.1995 i.e. when the child was not even 11 months old. Claiming that there was enough confusion in her family in these 11 months because of the name of the child, is too imaginative to be accepted.

33. The learned Judge, Family Courts has referred to these incidents and rightly concluded that they amounted to normal wear and tear in the family and cannot be termed as cruelty, as alleged by the appellant-wife.

34. Though these incidents have been termed as normal wear and tear of the married life of the parties of around 1½ years, but, they cannot be overlooked and ignored when happened routinely and created disruption in their inter se relationship and also prevented creation of any mutual trust, conjugality or cordiality in their relations. This aspect was aptly described in the case of Vinita Saxena (supra) that if the taunts, complaints and reproaches are of ordinary nature only, the Court perhaps need to consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse changed with them to genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. Similar observations have been made in the case of A.Jayachandra Vs. Aneel Kaur (2005) 2 SCC 22.

35. Such day to day incidents add heavily in the minds of either spouse and ultimately lead to a situation from where there is no return. This happened on 02.07.1995 when the appellant left the matrimonial home. The Digitally appellant claimed that she was slapped and given kicks and blows and her head was hit against the door as she wanted to go to her parental home. On the other hand, the respondent-husband had claimed that she made false allegations and called the police at 100 number. She however refused to undergo any medical examination and left without any registration of any case.

36. It is admitted by both the parties that some fight took place between the two and even the police was called and the appellant left the matrimonial home. Her assertion that she was severely beaten up to the extent of her head being hit against the door, is not supported by any independent witness. It is the testimony of the appellant against the testimony of the respondent. Though it cannot be held as to who was at fault but it is an admitted fact that some fight happened on 02.07.1995 and the appellant left the matrimonial home. It was for the appellant to have explained the gravity of the situation which transpired on 02.07.1995 which was so overbearing that she was compelled to leave her matrimonial home.

37. It is pertinent to refer to the discharge summary dated 04.07.1995 of Deepak Memorial Hospital where she got herself admitted after she left the matrimonial home. She was kept under observation for 24 hours. The discharge summary stated that the appellant was admitted in the hospital with the history of loss of appetite, nausea, vomiting, mild depression etc. for about 12 days and thus, was examined for possible hepatitis. She was discharged on the next day. The medical documents itself reflect that there was no assault or injury on account of the alleged assault but had got admitted in the hospital after one day with the history of vomiting, nausea etc. and was kept under observation for about 24 hours. Another aspect of Digitally the matter is that she did not go to the hospital on 02.07.1995 itself but she went there on 03.07.1995. Thus, her own medical documents disapprove her claim of having been beaten up by the respondent and his family members.

38. Soon after leaving the matrimonial home on 02.07.1995, the appellant filed a criminal complaint before CAW Cell on 19.07.1995 which ultimately led to the registration of FIR under Sections 498A/406 IPC against the respondent and his family members, which included his two married sisters. The respondent-husband and his family members even remained in police custody for two days after which they were granted bail.

39. The appellant had admitted in her cross-examination that at the time of her marriage, both the sisters of the respondent were already married and one was residing in Ghaziabad, U.P. and other in Jind, Haryana. The elder sister of the respondent was a Doctor by profession i.e. Gynaecologist and the younger sister was a Chartered Accountant. As noted above, the allegations of dowry harassment had been made not only against the respondent and his parents but against the two sisters of the respondent who had also faced the trial for about 20 years. The appellant had tried to justify her allegations of dowry harassment against the two married sisters by claiming that Dr.Rita Gupta, sister of the respondent used to visit their house frequently while the other sister at that time was residing in their house as she was pregnant. There is nothing concrete which has been brought on record by the appellant against the two sisters to show that they were, in any way, party to the acts of dowry harassment. Rather, Dr.Rita Gupta, sister of the respondent had been consulted by the appellant during her pregnancy. There is nothing in the testimony of the appellant to show that she was being Digitally harassed on account of dowry by the two married sisters. Roping them in the criminal case can only be termed as an act of extreme cruelty to the brother (respondent) who became a reason for their harassment of facing the trial for almost 20 years.

40. The appellant had deposed that the respondent and his family members ridiculed her for having brought insufficient dowry and felt cheated. It was alleged by her that they pressurized her to ask her father to arrange a Maruti Car, a VCR and Rs.50,000/- in cash and when refused by the respondent, she was subjected to mental and physical cruelty. Though these allegations have been made by the appellant but she has failed to explain in detail when, where and by whom these demands were made which becomes significant as the allegations have also been made not only against the respondent and his parents but also against the two married sisters of the respondent.

41. If any person has been subjected to any crime, that person has an absolute right to seek the remedy by taking recourse to the State machinery. If in fact, the appellant was subjected to cruelty, she had every right to approach the police. However, it was for her to establish from the cogent evidence of being harassed and subjected to cruelty on account of insufficient dowry. But, unfortunately, her evidence is as vague as it could be. There is no evidence practically from where it could be concluded that she was being harassed for dowry demands. These facts and allegations have also been adjudicated in the criminal trial where the respondent and his family members have been acquitted vide the Judgment dated 21.04.2022.

42. Though filing of a criminal complaint per-se cannot be termed as an act of cruelty yet, at the same time, the allegations of cruelty as made in the Digitally criminal case(s), should have been substantiated in the divorce proceedings.

43. In the case of K.Srinivas vs.K.Sunita X (2014) SLT 126, the Supreme Court held that filing of the false complaint against the husband and his family members constitutes mental cruelty for the purpose of Section 13(1)(ia) of the Act, 1955.

44. Similarly, it has been held by the Supreme Court in Mangayakarasi vs. M.Yuvaraj (2020) 3 SCC 786 that it cannot be doubted that in an appropriate case, the unsubstantiated allegation of dowry demands or such other allegations, made the husband and his family members exposed to criminal litigation. Ultimately, if it is found that such allegations were unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege the mental cruelty has been inflicted on him, certainly, in such circumstance, if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original Court to allege mental cruelty, it could well be appreciated for the purpose of dissolving the marriage on that ground.

45. Further, the Supreme Court in the case of Ravi Kumar vs. Julmidevi (2010) 4 SCC 476 has categorically held that “reckless, false and defamatory allegations against the husband and family members would have an effect of lowering their reputation in the eyes of the society” and it amounts to „cruelty‟. Similar observations were made by the Coordinate Bench of this Court in the case of Rita Vs. Jai Solanki (2017) SCC OnLine Del 9078 and Nishi Vs. Jagdish Ram 233 (2016) DLT 50.

46. The appellant-wife has not been able to justify the grounds on which the complaint was made which led to registration of FIR. As discussed in the judgments mentioned above, complaint with unexplained allegations to Digitally various agencies, cannot be termed as anything but cruelty.

47. It is an admitted fact that the parties have not lived together since 1995 i.e. a period of almost 28 years. It has been already noted time and again in the judgments of the Supreme Court that continuous separation between the parties for a long period itself is a ground for divorce. The Apex Court in the case of Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 has held that once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective, are bound to be a source of greater misery for the parties.

48. In Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Supreme Court held as under: “no uniform standard can ever be laid down for guidance, yet it was deemed appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. When there has been a long period of continuous separation, it may be fairly concluded that the matrimonial bond is beyond repair. The marriage 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 the marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties, it Digitally may lead to mental cruelty. When a man and a woman get married, they do so with the intent of finding love; happiness; mental, physical and psychological satisfaction; progress; and procreation. The dream of the parties is to jointly face the challenges that life has to throw, and to grow and progress financially, socially, spiritually, etc. When the marriage sours, the vows that the couple takes at the time of marriage are a casualty. We take it that neither party enters into the matrimonial bond, only to break it later. For the said bond to breach, there are bound to be some underlying reasons. In some cases, those reasons may come to the surface and the court may be able to see them. In others, they may remain latent for myriad reasons. Those reasons would, invariably, be attributable to both the parties, as it takes two to fight. And when the fight goes to the point of them filing cases against each other, the situation becomes messy and bitter for both of them. Unless the situation is diffused early and the parties decide to reconcile and call a truce, with passage of time, the void between them only increases, and the feeling of love and warmth in their relationship begins to fade. What is left is only a feeling of hurt, hatred, disrespect, disregard and bitterness for the other. These negative feelings and thoughts are bound to give rise to mental trauma, harassment and cause immense cruelty to one-if not both the parties. Digitally In such situations, continuation of the relationship between the warring spouses causes immense emotional and psychological trauma to the parties which would, in itself, tantamount to cruelty by both parties, upon the other.”

49. In view of above discussion and settled position of law, we conclude that in the present case; the parties are living separately for 28 years now; there is no chance of reconciliation between the parties and such long separation peppered with false allegations, Police reports and criminal trial has become a source of mental cruelty and any insistence to continue this relationship would only be inflicting further cruelty upon both the parties. The marital discord between the parties has pinnacled where there is a complete loss of faith, trust, understanding and love between the parties. The parties cannot be reasonably expected to live with each other anymore. The withdrawal of the wife/appellant without any explicable reason thereby depriving him of co-habitation and conjugal rights for 28 years followed by fake complaint and a criminal trial which lasted over 20 years, all proves that respondent has been subjected to cruelty, entitling him to divorce.

50. We therefore, find that the learned Judge, Family Court rightly came to the conclusion that the respondent-husband has been subjected to cruelty entitling him to divorce on this ground.

51. Coming to the aspect of Desertion, the appellant had admittedly left the matrimonial home on 02.07.1995. She had claimed that she was beaten up on that day. Left with no choice, she claimed that she had to leave her matrimonial home. As already discussed above, she had not been able to Digitally prove that there were compelling circumstances created for her to leave the matrimonial home. Her own medical discharge summary belies her claim. The appellant has not been able to explain the reasons for leaving the matrimonial home. The learned Judge, Family Court was thus, right in holding that the appellant left the matrimonial home with an intent to desert the respondent, and thereby, entitling for divorce on the ground of desertion.

52. Accordingly, we concur with the findings of learned Judge, Family Court granting divorce on the ground of „Cruelty‟ and „Desertion‟ under Sections 13(1)(ia) and 13(1)(ib) of the Act, 1955. Consequently, we find no merit in the Appeal, which is hereby dismissed.

53. The pending applications, if any are also disposed of accordingly.

(SURESH KUMAR KAIT) JUDGE (NEENA BANSAL KRISHNA)

JUDGE SEPTEMBER 20, 2023 akb Digitally