Full Text
JUDGMENT
RAM AVTAR BAIRWA ..... Appellant
Through: Ms. Radhika Arora, Advocate
Through: Mr. Satish K. Sansi, Advocate
HON'BLE MS. JUSTICE JYOTI SINGH G.S. SISTANI, J.
1. The present appeal has been filed under Section 19 of the Family Courts Act, 1984 against the judgment dated 07.04.2018 passed by the Family Court by which the petition filed by the appellant/husband seeking divorce under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘HMA’) was dismissed.
2. The necessary facts to be noticed for the disposal of the present appeal are that the marriage between the parties was solemnized on 30.10.1990, at Rajasthan, as per Hindu rites and ceremonies. Two daughters were born from the said wedlock, who are staying with their mother/respondent herein after separation. As per the divorce petition filed by the appellant/husband, the parties are living separately since 01.06.2001. As per the cross-examination of respondent/wife, she is 2019:DHC:6145-DB staying separately since 2002. A petition under Section 9 of HMA was filed by the appellant/husband on 24.09.2001. Subsequently, another petition under Section 9 of HMA was filed by the respondent/wife on 25.09.2001. A settlement was arrived between the parties whereby appellant/husband agreed to pay a sum of Rs.5,000/- per month to the respondent/wife and she was to join back the matrimonial home, however, she did not join the company of the appellant/husband. Consequently, the said petition filed by the appellant/husband under Section 9 was withdrawn by him on 09.10.2006.
3. A petition seeking divorce under Section 13(1)(ia) of HMA was filed by the appellant/husband on 20.10.2006. Ground of adultery was subsequently raised by the appellant/husband which was permitted to be raised by the Family Court vide order dated 05.02.2009.
4. Ms. Radhika Arora, learned counsel appearing on behalf of the appellant/husband submits that the impugned judgment passed by the Family Court is mechanical in nature and has been passed without applying law to the facts of the present case. The counsel further submits that the appellant/husband is entitled to a decree of divorce on the ground of cruelty alone as there were false cases filed by the respondent/wife against the appellant/husband and his family members which amounts to mental cruelty. It is contended that in one of the cases titled as State vs. Ram Avtar, filed by the respondent/wife, the Trial Court vide order dated 05.08.2013 in FIR No.824/01 recorded acquittal of the appellant as well as his family members. The Family Court has failed to appreciate that filing of false case under Section 498A of IPC as well as complaint filed by the respondent/wife to the superior officers of the appellant shows that she does not wish to stay with him and is a ground sufficient to grant divorce to the appellant herein.
5. It was contended by the counsel for the appellant/husband that the respondent/wife has tried to tarnish the reputation of the appellant by visiting his office on 29.12.1999 and a complaint was made by the respondent/wife to his employer (Station Director) All India Radio, Delhi. Attention of this court has been drawn to the office memo dated 31.12.1999 issued to the appellant/husband by the Station Director. The counsel further contended that the respondent/wife has made a false complaint to the husband's employer and the same would amount to mental cruelty. To buttress his argument, reliance has been placed in the case of Smt. Parveen vs. Sh. Hukum Singh reported at 2016 SCC OnLine Del 4556, more particularly para 17, 18, 19 and 34 to 36 by which a Division Bench of this Court while dismissing the appeal filed by the wife has observed that a false complaint by the wife to the husband's employer would amount to mental cruelty. The relevant paras 18, 19 and 34 to 36 read as under:
6. Ms. Radhika, learned counsel for the appellant/husband contended that apart from the testimony of the appellant who was examined as PW[1], there are testimonies of other witnesses being PW[2] Sh.Shiv Shanker Dubey (tenant of the appellant), PW[3] Sh.Vimal Verma (Professional Photographer), PW[4] Sh.Badri Prasad Bhagwat and PW[5] Sh.Ganga Sahai are sufficient to establish the ground of cruelty and thus, the appellant/husband is entitled to a decree of divorce. The attention of the Court is drawn to the evidence of PW[3] Sh.Vimal Verma wherein he had deposed that on 24.08.2008, at about 9.00 AM, he had gone to the place where respondent/wife was staying and completed the recording of respondent wherein she was shouting in the society as ‘Bachao Bachao’ and was using abusive language.
7. It is contended by the counsel for the appellant/husband that the present case is one of a dead marriage where parties are living separately for the last more than 13 years. The attention of the Court has been drawn to the cross-examination of the respondent/wife in proceedings under Section 498A of IPC whereby she stated as ‘I am living separately from my husband since last 13 years’. Attention is also drawn to the statement made by the respondent/wife during her cross-examination in a civil suit seeking permanent injunction whereby it was stated as ‘It is correct that since last 13 years, I see Defendant No.1 in the court hearing only and there was no talk between us since last 13 years’
8. Per contra, Mr. Satish K. Sansi, learned counsel appearing on behalf of respondent/wife vehemently opposed the appeal filed by the appellant and submits that the appellant and his relatives had thrown respondent out of the matrimonial home on account of giving birth to two girl children. The attention of this Court has been drawn to the testimony of PW[2] Smt.Sunita Devi in proceedings filed by her under Section 498A of IPC before Metropolitan Magistrate, Mahila Court, Dwarka whereby it was stated as ‘Accused Ram Avtar and his mother told her that the girl child is not theirs and told them to undergo the blood test to ensure the paternity of second child. Her parents left after leaving her there. Thereafter, her husband and his relatives have thrown her out alongwith her daughters. Thereafter, she came to her parental house and filed a complaint in CAW Cell Ex.PW2/A.’
9. The counsel further submits that the evidence of PW[4] Sh.Badri Prasad Bhagwat is not trustworthy and cannot be relied upon. As per the evidence of PW[4], he had visited the house of the respondent/wife on 06.10.2006 where she had made a demand of Rs.1.20 Cr to withdraw all the cases registered by her against the appellant and consequently, she would stop harassing him. In this background, it was contended by the counsel that demand of Rs.1.20 Cr made by the respondent/wife does not amount to cruelty to the appellant/husband. Similarly, the attention of this Court has also been drawn to the testimony of PW[3] Vimal Verma to submit that he is not a reliable witness and the said recording done by him was pre-planned. In support of his argument, reliance has been placed on V. Bhagat vs. D. Bhagat reported at
10. We have heard learned counsel for the parties and considered their rival submissions and have given our thoughtful consideration to the matter.
11. We may note that the learned Family Court while dismissing the petition seeking divorce made the following observations. The relevant paras read as under: “32. The petitioner husband cannot derive much mileage from the testimony of PW[2] to PW[5] either. PW[2] Shiv Shanker Dubey in general testified about the misconduct on the part of the respondent wife in coming out her house E-190, Om Vihar, Phase-5, Uttam Nagar, Delhi and shouting loudly, gathering nearby people and calling for police alleging that she had been beaten up by her husband. PW[2] never says that he intervened or made any personal inquiries about genuineness of the shenanigans so put forth by the respondent wife. Moreover, this witness too was not able to cite any specific instances of misconduct on the part of the respondent wife. PW[2] failed to produce any document that he was residing in the neighborhood and witnesses too. The testimony of PW[3] Vimal Verma, that on 24.08.2006 he reached the site to conduct video recording of the manner in which the respondent wife was behaving, is utterly un-believable. Likewise, the testimony of PW[5] Ganga Sahai is very brief to the effect that about three years back continuously two days he happened to see the wife of the petitioner husband pouring kerosene oil upon herself and although this witness was not cross-examined by the respondent wife despite affording opportunities, since RW[1] was not confronted with any such fact in her cross-examination, this witness also does not corroborate the version of the matrimonial dispute and its history testified as deposed PW[1].
33. Indeed, as canvassed by Sh. Dua, Ld. Counsel for the petitioner husband it is not as if there were no blemishes on the part of the respondent wife. As brought out in evidence, she chose to file a complaint for harassment on account of dowry after almost 10 years of marriage, and though it was initially withdrawn, after a year or so, she sought revival of the proceedings, but it did not result in any police action as such. However, in the complaint to the police, which is marked X-7 dated 29.09.2006; she alleged illicit relationship between her husband and his colleague. In this regard, RW-1 in her crossexamination did depose that her husband was having illicit relationship with the daughter of his landlord, namely Miss 'X' (identity protected for matter of privacy). However, on a meticulous examination of the entire marital history of the parties spanning for almost 15 years, it appears that the conduct of the petitioner husband has been more blameworthy than the respondent wife. It needs to be appreciated that the petitioner husband is an educated person whereas the respondent wife is an illiterate village, woman, and it appears that the petitioner husband got disenchanted by the fact that she had given birth to two daughters while he always wanted a male child, as was observed in the judgment dated 26th February 2013 by the Hon'ble Judge of the High Court. Not much can be read into the testimony of PW-1 that the respondent wife visited his office and met his superior in as much as the PW-1 conceded that she visited only once on 29.12.1999, but there is nothing to discern that she created any ruckus or did anything to malign the reputation or character of her husband.”
12. The first question which arises for our consideration is as to whether the appellant/husband has suffered cruelty on account of the complaint filed by the respondent/wife to the Superior Officers of the appellant/husband as well as before the Police officials and CAW cell.
13. It has been repeatedly held by the Supreme Court that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the Court against the spouse would amount to causing mental cruelty to the other spouse. The Division Bench of this Court in the case of Smt. Parveen (supra) has also held that making false complaints containing allegations of indecent allegations and making indecent behaviour and making defamatory allegations against the spouse amounts to causing mental cruelty to the other spouse.
14. It is the case of the appellant/husband that on 29.12.1999, the respondent/wife alongwith her brother met Station Director, All India Radio, Delhi to complaint some problems with her husband. In this regard one office memo dated 31.12.1999 was issued by Prasar Bharti (BCI) AIR: New Delhi by which the appellant/husband was advised to settle the matter on his own and that office will not intervene in the same.
15. We may note that the said complaint made to the Station Director has been mentioned in para 25 of the divorce petition filed by the appellant/husband. Para 25 reads as under:
16. The said averment made in para 25 of the divorce petition was denied by the respondent/wife in the written statement filed by her. The relevant para 25 reads as under:
17. In this backdrop, we are of the view that no reliance could be placed on such a document which is disputed by the respondent/wife in the written statement filed by her, though, the respondent/wife had admitted in her cross-examination dated 24.01.2012 when suggestion was given to the respondent/wife by the counsel for the appellant/husband that she has filed complaint to the Police officials against the appellant/husband. At this stage, it would be necessary to extract cross-examination of the respondent/wife. The relevant part reads as under: “……..My marriage was solemnized in the year 1990. After Jaipur, the petitioner was transferred to Delhi and I alongwith the petitioner came to Delhi and started living at Madangiri on rented accommodation. I do not remember the period of our stay at Madangiri. Thereafter, we shifted to Sagarpur, where my cousin also used to reside. It is correct that I had lodged my first police complaint from Sagarpur which was subsequently settled. It is wrong to suggest that I had lodged that complaint on asking of my father and brother. It is wrong to suggest that in that complaint I had written that I had filed the said police complaint at the asking of my father and brother. The complaint in the year 2001 was made by at any one's instance but because the petitioner used to harass me. …. …. ….. It is correct that I used to say that the petitioner had illicit relations with the daughter of landlord of the petitioner. The name of that daughter/girl was X. It is wrong to suggest that I used to harass the petitioner by leveling such allegations against him. It is wrong to suggest that my brothers used to visit my matrimonial house at Sagarpur. I visited the Office of the petitioner two times, when we were living together. I went to meet the petitioner at his office. I do not remember if I had a talk with the senior officers of the petitioner. It is wrong to suggest that I had a talk with the senior officers of the petitioner or I blamed that the petitioner is harassing me and the petitioner had a relation with the daughter of his landlord. It is wrong to suggest that despite the order at the time of bail of the petitioner, in the criminal matter, I did not join the company of the petitioner in the matrimonial home. I am living separately from the petitioner since 2002. It is wrong to suggest that on account of illicit relations of the petitioner with the daughter of his landlord, I used to gather the local people in the vicinity. It is correct that I had made a complaint against the petitioner to the police alleging that the petitioner tried to kill me, intentionally in a road accident, as the petitioner was annoyed with me and was making false allegation that our younger daughter is not his daughter. It is wrong to suggest that as per order of the matrimonial court passed in a petition u/s 9 HMA, I had joined the company of the petitioner at the matrimonial home but I had again started creating scenes. Vol. rather it was the petitioner who once again started misbehaving and did not give me money for running the house and eventually left the matrimonial home, while I am still staying in that matrimonial home. It is wrong to suggest that I had sprinkled Kerosene oil upon myself and threatened the petitioner to set myself ablaze and further created a scene by crying out loudly outside the house. In 1999 the complaint which was made by me, was made by me while I was accompanied by my brother. At the time when I joined the company of the petitioner, as per the orders of the Court, in petition u/s 9 there were TV, bed, two chairs, Gas Cylinder alongwith Chulha and some utensils in the house. All the said articles were belonged to the petitioner. Vol. my entire dowry is lying at my matrimonial house at Rajasthan. It is wrong to suggest that 1 had created such circumstances that the petitioner had to leave the matrimonial house and to ran away from the house, with an intention to grab the house of the petitioner. I knew that the house/property no. E-190, Om Vihar, Phase-V, Uttam Nagar, Delhi, in which we used to reside belonged to the petitioner. I know that till today the said property belongs to the petitioner. I do not remember if I had filed a civil suit for permanent injunction against the petitioner and his brother. It is correct that a suit for vacating the premises has been filed by the brother of the petitioner against me. Vol. the suit has been filed by the petitioner and his brother jointly. ….. …. …. It is wrong to suggest that I called my brothers to beat the petitioner on several occasions. It is wrong to suggest that I am demanding Rs. 1 crore 20 lacs to settle the matter from the petitioner intentionally to harass and torture the petitioner. ….. …. …. It is wrong to suggest that during the period of my stay at Sagarpur, I went to my parental home for about 1 ½ years. It is wrong to suggest that during the said period of 1 ½ years, I became pregnant and subsequently gave birth to my younger daughter at my matrimonial house. Vol. the younger daughter is from my husband. It is wrong to suggest that during the said 1 ½ period the petitioner did not meet me. Vol. there was no such period of 1 ½ years of my stay at my parental house. It is wrong to suggest that I used to threaten the petitioner that 1 will pour the Kerosene Oil upon me deliberately to impose the false allegations upon the petitioner and his family, It is wrong to suggest that I am deposing falsely.”
18. The appellant/husband has also relied upon the testimony of PW[2] Sh.Shanker Dubey who was residing as a tenant in the house of the appellant/husband, on the first floor of the property situated at E-190, Om Vihar, Phase-V, Uttam Nagar, New Delhi. PW[2] stated in his cross-examination that he started residing in the month of June, 2006 and vacated on 30th September 2006. PW[2] used to pay rent to the appellant who was residing at the ground floor of the said property. It was stated by PW[2] in his cross-examination that during his stay for the period of four months, the Police had come about 4-5 times. Police was called by the wife of the appellant. The wife of the appellant used to come out of her room and used to shout and cry by saying ‘Maar dala Maar dala’ and due to which mob gathered at gali. The appellant had left the house on 25.08.2006 and did not return. The respondent created troubles for him and his family. She used to throw water on his belongings and also used to throw away his belongings, pelted stones and used to abuse him.
19. The next witness relied upon by the appellant/husband is PW[3] Sh.Vimal Verma was working as a professional photographer. PW[3] stated in his cross-examination that on 24.08.2008, at about 9.00 AM, he had gone to the house of the appellant for recording the activities of respondent. He deposed the address of the appellant as E-190, Om Vihar, Phase-V, Uttam Nagar, Delhi. It was voluntarily deposed by him that he had started recording when he heard the respondent shouting in the society as ‘Bachao Maar Dala’ and she was using abusive language at that time.
20. PW[4] Sh.Badri Prasad was working as a Manager in Dainik Jagran Newspaper on the day of his evidence. He stated in his crossexamination that on 06.10.2006, at about 7.30 PM, he had visited the residence of the respondent in Uttam Nagar. He had gone to the house of the respondent upon request made by her. PW[4] further stated that respondent asked him to settle her matrimonial issues with the appellant for an amount of Rs.[1] crore. When PW[4] was leaving her home, a further demand of Rs. 20 lacs was made by the respondent for the expenses of the children.
21. Lastly, PW[5] Sh.Ganga Sahay who was residing in the neighbourhood of the appellant deposed that about 3 years back from the date of his evidence, for two consecutive days, he had seen the respondent who used to pour upon herself kerosene oil and kept shouting. Smell of kerosene oil was detected from her clothes. PW[5] further deposed that when the said fact was informed by him to the appellant, he told him that this was the reason due to which he was not staying in his home and did not want to live with her. The testimony of PW[5] could not be tested by cross-examination as opportunity to cross-examine the said witness was closed by the Family Court.
22. Reading of the testimony of respondent/ RW[1] would show that various complaints have been made by her to the Police officials. The first Police complaint which was made by the respondent/wife was lodged at Sagarpur. The respondent/wife has admitted in her evidence that she used to say that the appellant/husband had illicit relations with the daughter of his landlord. The respondent/wife had also visited the office of the appellant/husband twice but she did not remember if she had talked with the senior officers of the appellant/husband.
23. Applying the aforementioned law to the facts of the present case and after carefully examining the evidence on record, we are of the view that the appellant/husband has been able to show that the respondent/wife has treated the appellant/husband with cruelty and made the life of the husband miserable by leveling false allegations against him. The order of acquittal dated 05.08.2013 passed by the Metroplitan Magistrate by which the appellant/husband and his family members have been acquitted under Section 498A of IPC after facing long trial of almost nine years proves the innocence of the appellant. Thus, levelling false allegations and subjecting the appellant to a long drawn legal battle and its turmoil amounts to mental cruelty on the appellant.
24. Coming next to the ground of infidelity raised by the appellant/husband, it is the case of the appellant/husband that the respondent/wife was in the habit of leaving the matrimonial home and used to frequently visit her parental home. It was further stated that the respondent/wife left the parental home in April, 1996 and then she came back to reside with the appellant/husband in June 1997. Second daughter was born on 13.09.1997. The appellant/husband is disputing the paternity of the second daughter.
25. On the issue of fidelity of the respondent-wife, we concur with the view and the observations made by the Family Court. The Family Court has observed that while admittedly the birth of the first daughter was on 17.05.1995, but the case set up by the husband that the paternity of the second daughter born on 13.09.1997 was in sheer, bad taste, unsubstantiated and unpalatable. In our view, the Family Court has correctly noted that the husband had not named the alleged adulterer and given the ground social and cultural ‘mores’ in the community, to which the parties belong, it was unconceivable that the appellant-husband would have accepted the return of the respondentwife to the matrimonial home in the background of these serious allegations. The Family court has rightly observed that in the grounds for dissolution of marriage initially, adultery was not even pleaded and moreover it is not fathomable that the husband would file a petition for restitution of conjugal rights if he had serious doubts about the fidelity of his wife and paternity of the second child. To this extent, the observations and the findings of the Family Court are upheld.
26. The Family Court has rejected the petition seeking divorce on the ground that no specific instances of cruelty have been raised by the appellant/husband and the instances which have come in the evidence are general and routine allegations, which are not substantiated. No specific instances of any rude, intemperate or abusive behavior have been shown by the appellant/husband.
27. As far as the specific incidents are concerned, although, the specific date and time has not been given for all the incidents averred, but the appellant/husband has led enough evidence to prove specific instances of the cruelty while relying upon the evidence of PW[2] to PW[5]. We find that the appellant/husband has been able to establish cruelty at the hands of the respondent/wife.
28. As regards the irretrievable breakdown of marriage, we are of the view that there is no doubt that irretrievable breakdown of marriage by itself is not a ground under HMA, on which alone a decree of divorce can be passed. However, the irretrievable breakdown of marriage is a circumstance which the Court can take into account when cruelty is proved and blend them together. There is no doubt that irretrievable breakdown of marriage has been blended with cruelty in recent judgments so as to dissolve the marriage between the parties, where the marriage is completely dead and beyond repair. In the present case, we find that the marriage is beyond salvage and the parties are living separately for the last more than 13 years. Thus, neither of the party would achieve anything by denying relief sought by the appellant. The appellant/husband has faced mental agony for almost 13 years by facing proceedings under Section 498A of IPC. The appeal is thus allowed on the ground of Section 13(1)(ia) of HMA alone.
29. Decree sheet be drawn up in terms of Section 13(1)(ia) of HMA. G.S.SISTANI, J. JYOTI SINGH, J. NOVEMBER 20, 2019 //