Bhumika Chawla v. Jaswant Rai Chawla

1. The present appeal has been filed under Section 19(1) of the Family Courts Act, 1984 seeking setting aside of judgment and decree dated 01.10.2019 passed by the Family Court, East District, Karkardooma Court.

2. At the outset, we wish to record that this is a legal aid matter and the counsel for the legal aid Ms. Deepali Gupta has argued the matter well and to the best of her ability in an objective and fair manner.

3. The respondent had filed the petition against the appellant under Section 13(1)(ia)of the Hindu Marriage Act, 1955 to seek divorce on the grounds of cruelty against the appellant. The said petition was allowed by the impugned judgment dated 01.10.2019. The appellant has challenged the said order.

4. The marriage between the appellant and the respondent (husband) 2021:DHC:2630-DB was solemnized on 22.12.2004 as per Hindu rites and ceremonies. It was a second marriage for both parties, and the appellant had no child from her previous marriage. The respondent, on the other hand, was a widower having 3 children from his previous marriage. In the year 2006, a daughter was born from the wedlock. Earlier, the daughter was residing with the appellant but, during the pendency of the divorce petition, the appellant handed over the custody of the child to the respondent and the child is now residing with the respondent. The parties separated in November, 2011.

5. The respondent preferred the divorce petition on or about 01.12.2011. Upon service of summons, the Appellant filed her written statement. In her written statement, the Appellant denied the allegations made against her, and went on to make serious allegations against the Respondent and his brother, and his brother’s wife. She stated that on 22/23.06.2009 in the night, the respondent (husband), her brother-in-law and sister-in-law (Devar and Devrani) tried to kill the appellant by poisoning her, by forcefully putting Baygon in her mouth. The appellant was admitted to Shanti Mukund Hospital and on deterioration of her health; she was shifted to Apollo Hospital, where she remained for 15 days. It was submitted that when the Police came for recording her statement, the Devar – Devrani and Nandoi of the appellant apologized and asked her for forgiveness, because of which and also to give her marriage another chance, the appellant did not give any statement to the police. The appellant has also submitted that she was forced to give an affidavit admitting her mistake of consuming poisonous Baygon, and she only agreed to do this to save her marriage and the future of her daughter.

6. The appellant claimed that the respondent husband and family members had beaten the appellant and her family members on 24.08.2009, and a Kalandra was also registered against the respondent and his brother on 24.08.2009 at P.S. Geeta Colony, but the matter was subsequently compromised due to threats.

7. She stated that on 11.11.2011, the respondent (husband) and Devar -Devarani threatened to kill the appellant, in case she does not leave the matrimonial house, and even tried to strangulate her. She called her brother and mother, who informed the Police Control Room. A complaint was also given to CAW cell.

8. Learned Counsel for the appellant submits that the Family Court failed to appreciate the evidence on record and even though none of the allegations made by the Respondent in his divorce petition against the Appellant-wife have been duly proved by the respondent, yet a decree of divorce has been granted in favor of the Respondent and against the Appellant

9. Learned Counsel submits that the inference drawn by the Family Court, that the appellant on her own consumed the insecticide, is erroneous and contrary to evidence on record. She submits that the appellant would never take such an extreme step, more so when she has a minor daughter. In fact, none of the witnesses supported the case of the respondent and, in fact, the Family Court failed to appreciate that it was the appellant who was ill-treated by her husband and in-laws, and harassed for dowry.

10. We have heard the learned Counsel for the appellant and have gone through the impugned judgment and the documents before us.

11. It is the admitted case that the appellant and the respondent have been staying separately since 11.11.2011. In the impugned judgment, the Family Judge has adverted to the date of the marriage between the parties being 22.10.2004 or 22.12.2004. However, the same is neither relevant nor germane to the issue in controversy and need not detain us.

12. Having considered the submissions of Learned Counsel, we are not inclined to interfere with the impugned judgment

13. In the factual matrix, what weighs with us in the entire gamut, are two important incidents –

1) Even more than consuming of the insecticide incident, is that the appellant lodged a police complaint against the respondent and her brother. As a result of the complaint, the respondent, and his brother were arrested and had to spend a night in jail, and were only released on the next day by the Special Executive Magistrate. Subsequently, the complaint was withdrawn. It has been held that this act itself amounts to serious cruelty. After the incident, even though the appellant and the respondent continued to stay together, but the act of the appellant does not get effaced, and in the light of subsequent conduct of the Appellant, it revives, even if condoned earlier.

2) The act of attempting suicide by consuming insecticide is also a serious factor that weighs in our mind. Though, the appellant alleges that it was the respondent, his brother, and his wife who forcefully made her consume the insecticide, we are satisfied with the analysis of the Family Court. The Family Court holds that “had the petitioner and his family members forced the respondent to consume the insecticide, there would be no occasion for the respondent to come back to her matrimonial home immediately after the treatment and reside with the petitioner. I am of the opinion that the material on record shows that the respondent of her volition consumed a household insecticide which caused serious threat to her life and she remained hospitalized for about fifteen days. Baygon has a strong pungent smell and a person cannot consume large quantities of such substance accidently”.