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MUKESH KUMAR Vs. CHANCHAL

Judgement

 
Court:DELHI HIGH COURT

Bench: JUSTICE S. Ravindra Bhat

MUKESH KUMAR Vs. CHANCHAL On 28 September 2006

Law Point:
No strait jacket formula of what is cruelty. Single or even isolated acts of grave severity can constitute cruelty. However, on other hand whole body of evidence may not measure upto required standard to constitute cruelty.

 

 

JUDGEMENT

 

This appeal, under Section 28 of the Hindu Marriage Act (hereafter ‘the Act’) was filed against the judgment dated 13.1.2003 passed by the Addl. District Judge, Delhi in H.M.A. No. 261/2001/88. The appellant (hereafter referred to as ‘the husband’) had filed a petition under Section 13(1)(i-a) before the Additional District Judge (hereafter ‘the Trial Court’) on the ground of cruelty by the respondent (hereafter ‘the wife’).

2. The appeal was directed to be listed in the category of the first five regular matters in the week commencing 3rd July, 2006, on the 17th of May, 2006. It was accordingly, listed in the category of regular matters and called out for hearing on 21st August, 2006 and on 6th September, 2006, when no adverse orders were passed due to absence of appellant’s Counsel. Again when the appeal was called out on 12th of September, 2006, the appellant’s Counsel was absent; no adverse orders were however passed. The respondent was present on the other hand, on 6th September, 2006, and 12 September, 2006. On the 13th of September 2006, when the appeal was called out, the appellant and his Counsel were absent, whereas the respondent was present with her Counsel. Arguments were partly heard. On the next three dates of hearing, namely 19th of September, 2006, 20th of September, 2006 and 28th of September, 2006, the appellant’s Counsel continued to be absent. Arguments were concluded on behalf of the respondent, on 28th September, 2006, when judgment was reserved. The order sheet for the previous dates of hearing had recorded that attempts were made to settle the dispute to the mutual satisfaction of the parties but unsuccessfully.

3. The marriage between the parties was solemnized on 2.6.1985 at East Patel Nagar, New Delhi. There are two children born out of this wedlock, they are now aged 20 years (girl) and 19 years (boy) respectively. Both the offsprings are residing with their mother and pursuing their education.

4. The husband alleged that after marriage he was frequently compelled by the wife to live in a separate house, away from his parents. The wife was working with Delhi Transport Corporation. It was alleged that she had started returning home late from office. The husband alleged that upon inquiry the wife replied that she had to go to her parents’ house from office. The husband also alleged that the wife was not assisting in any household work.

5. The husband alleged that on 23.6.1987 the wife picked up a quarrel with him; when he asked her to accompany him for a movie, she started striking her head against the wall and had intentionally turned on the cooking gas open so that the husband would be found guilty of attempting her murder. It was also alleged that the wife had threatened the appellant that she would falsely implicate him in a criminal charge. The appellant also had alleged that his wife-the respondent had an illicit relationship with her previous neighbour and this had caused him severe mental agony and torture. The respondent and her family, after the birth of their second child never allowed the appellant to see the child. The appellant on 6.5.1998 along with his father and a friend visited the respondent’s home for re-conciliation of their marriage and in the course of that visit; he was assaulted and insulted by the respondent’s brother. The respondent had allegedly declined to live with the husband thereafter. She also filed a criminal complaint under Sections 499/500, IPC in the Court of the Metropolitan Magistrate, Delhi; that was later dismissed.

6. The appellant filed a petition for dissolution of marriage by a decree of divorce under Section 13(1)(i-a) of the Hindu marriage Act. The Trial Court dismissed the petition on the finding that the allegations against the respondent were frivolous, the appellant failed to prove them. It was held that the respondent was interested in joining her husband even till the date of decree. Aggrieved by the judgment of the trial dated 13.1.2003 dismissing the divorce petition, the husband filed this appeal seeking a decree of divorce by setting aside the Trial Court’s impugned judgment.

7. The husband had alleged cruelty, on the ground that the wife compelled him to live separately, and away from his parents; that her parents interfered with the matrimonial affairs and so she insisted for separate residence. It was also alleged that she did not help in the house hold chores; refused to prepare breakfast when the mother in law was unwell; used to return late from office, misbehaved and gave the appellant a blow with a stick, which hit him on his left arm, picked up a quarrel and started striking her head against the wall, tried to put a noose around her neck to commit suicide and threatened that she would involve him in a criminal case, refused to serve tea and coffee to his friends and also refused to watch a movie with him. It was also alleged that the wife had an illicit relationship with Shri K.L. Gosain.

8. Six witnesses deposed in the proceedings before the Trial Court; three on behalf of the appellant husband, and three, in support of the wife’s case. The husband’s mother did not depose in the proceedings.

9. As far as the allegation of the husband with regard to the demand by the wife for separate residence was concerned, the Trial Court concluded that the evidence was not sufficient to establish cruelty. The Trial Court relied on a decision of this Court that merely asking for a separate residence by the wife could not be termed as an act of cruelty as a ground warranting dissolution of marriage, I (1987) DMC 294=AIR 1988 Del. 107. The Court further held that the husband, in his testimony has failed to prove that there was any pressure was exerted by the wife upon him to live separately from his parents, and he had merely stated that during their honeymoon, the respondent insisted to live separately in Delhi; he did not explain as to whether there was any pressure exercised by the wife on him or is she had casually expressed her wish to live separately. The husband had deposed that the wife was not interested to live in a joint family along with his parents, and she had stated that she would fight with them. No details or reasons regarding such fight were, however, disclosed. The Trial Court held that the husband did not produce either of his parents to prove the said demand of separate residence. Thus, it reasoned that the mental state of the petitioner while drafting the petition was disclosed; he leveled false allegations against the character of the respondent by saying that she wanted to go separate to continue her relationship with Shri Gosain.

10. As regards the allegation of cruelty grounded on the refusal to perform household chores was concerned, the circumstance that the husband did not produce his mother in the witness box to corroborate his testimony was taken note of. The trial Court held that though it is the duty of a daughter-in-law to assist in house hold chores but merely alleging that the wife did not do so did not prove any kind of legal cruelty on the part of the daughter-in-law in the absence of corroborative evidence. It was held that the mother-in-law was the best witness to say that the wife never helped her in doing any household work; yet neither she nor any other family member was produced in the witness box to prove the allegations; consequently adverse inference was drawn against the husband. Likewise, the allegation of the wife refusing to prepare breakfast during illness of her mother in law, and of her quarrelling and abusing her mother-in-law, her striking her head against the wall and threatening to commit suicide and involve the whole family in a criminal case, was not believed. The petitioner had deposed it in chief and stated the neighbours had witnessed the incident, but no names were given and none of them were produced in the witness box. The Court held that in such a case when the witnesses were available, to corroborate his testimony the husband did not seek to do so. Further, the Trial Court also noted that the husband had not lodged any police report if he suspected that the wife was suicidal. It was therefore held that such allegations were not proved. It was also held that assuming the wife had been extending any threat, there was nothing, which prevented her from lodging any report with the police against the husband and his family members. There was however, no such report made by her to the police.

11. Dealing with the allegation of cruelty on the ground of blow by the wife and her returning late from office, insulting his friend by not preparing tea, the Court noted that the husband in the chief-examination, alleged that the wife gave him a blow and in the cross examination he stated that the blows hit him on his left upper arm and on his head. The husband had failed to get the witnesses’examined on this aspect and the Court held that there was no force in the allegation. The husband had alleged that the incident happened at his house in the presence of his parents yet, he did not examine them. The appellant had failed to prove this allegation. As regards the wife’s returning late from office, it was held that the husband did not disclose as to since when the wife started arriving late from office. He did not produce any of his family members to corroborate his testimony to that effect. The Court disbelieved the testimony of PW-3, Dev Bagga, inter alia, as he was a friend of the husband, and made false statements on oath just to create a ground for divorce. The evidence of PW-3 and the husband about visiting the latter’s home for tea was held to be contradictory. The Trial Court held that there is material contradiction in the testimony of the two witnesses with regard to the alleged incident which lead to the conclusion that no such alleged incident took place. The Court reasoned that even assuming that the incident had taken place at the residence of the husband, then too, he could have called his parents to the witness box to be examined. He had not done so.

12. Certain letters had been relied upon by the petitioner husband, to establish that the wife had acknowledged on several occasions, her misdoings, and these established cruelty on her part. The Court held that those letters produced appeared to be more in form of confession under duress than voluntary acts; and that the fact that the letters were written under pressure by the wife also stood proved from the contents of the letter. She had explained to her father, by two letters, as to how she was pressurized to obtain their signatures on the letters and that she was all the time threatened to be divorced by the petitioner. The letters dated 12.3.86 and 3.4.87 talk about the cruel treatment meted out to her from her in laws and her husband. The Court held that there was no cross-examination on the said letters and they had gone unchallenged. Therefore, a presumption that the Petitioner admitted contents of the said letters, had to be drawn.

13. A serious allegation about the wife having an illicit relationship with one K.L. Gosain had been made. The Court held that the allegations levelled were vague and general in nature, just to make out a ground for divorce. In the examination in chief, the husband did not disclose the names of persons who first informed about the said affair, the names were disclosed only in cross-examination. The Court also held that the meeting of the wife and K.L.Gosain at Connaught place and Buddha Jayanthi Park were not disclosed in the petition, the meeting can be taken as a by chance meeting and it doesn’t show any illicit relationship. In fact, it was held that PW2, who spoke in support of the allegation, admitted that he saw nothing wrong between the Respondent and K.L. Gosain. The husband had stated that Shri Gosain tried mediating when there were marital discords between the couple and the trial Court held that it was strange to that if the husband knew about the alleged affair then he would not have sought the said person’s intervention. The Trial Court concluded that PW2 could not be relied upon, to support the petitioner’s vague and general testimony and that there was no cogent evidence to show that the petitioners allegation was true; it was just made to create ill will between the parties and used as an additional ground for dissolution of marriage.

14. It had been alleged that the wife wanted her father-in-law to transfer his property to her. The trial Court held that these were two contrary allegations, as on the one hand, the allegation was that the wife compelled the appellant to lead a separate life without his parents, whereas on the other hand, the allegation was also that she demanded the transfer of the father-in-law’s property to her. The allegations were held to be insufficient to prove any type of cruelty by the wife towards the husband. The allegation that the wife threatened to commit suicide and involve all family members in a criminal case if the property was not transferred in her name is a statement beyond pleadings, despite the threats the property was not transferred to her. If the respondent was threatening them by putting a noose around her neck and leaving the gas stove open to commit suicide the husband could have informed the police and sought their help. The incident, it was said, is said to be happened at home in presence of the husband’s parents; yet they did not appear in the witness box to corroborate the testimony of the appellant though they were the best witnesses to describe the behaviour of the respondent towards the husband and other family members.

Analysis of evidence

15. PW1- Mukesh Kumar, the appellant in his evidence, deposed that the wife wanted to lead a separate life, wanted his fathers property in her name, she threatened she would commit suicide in case it was not transferred then she would falsely implicate them in a criminal case. He alleged that the wife would give away her salary to her parents and not deposit it in the bank. He further deposed that the illicit relationship of the wife with Shri K.L.Gosain was informed to him by his friend who had seen the respondent and Gosain initially at Connaught Place and later on at Buddha Jayanthi Park. The appellant states that he visited K.L. Gosain’s place when there was a matrimonial dispute between the parties for mediation. The mediation was attended by the K.L. Gosain, the appellant, his father and Shri Darshan Lal. It was alleged that the couple did not stay together after the said mediation/ meeting. It was also alleged that after Diwali the respondent did not visit the appellant, and that she went alone to attend the her younger sister’s marriage. A week after the marriage the appellant went to see his son at the respondent’s place. The appellant also says that he never went to the respondent’s parental home. He deposed that till 6.5.1988 he wanted to stay with his wife, but was not ready for it anymore even if she was willing with or without any conditions.

16. PW-2 Prakash Gosawmi, claims to have known the respondent’s family since 1952 and for the first time he had seen the respondent with K.L. Gosain on the pavement in front of Khadi Bhandar near Regal Cinema in the afternoon. He alleged that the second time he saw the two of them near Buddha Jayanthi Park in car. He also states that he did not see anything wrong and so did not inform the respondent wife’s parents. PW-3, Dev Bagga (the appellant’s old friend), deposed that he had gone to the appellant’s house on 25.7.87 with his wife for tea, he was served water and when the respondent was asked to make some tea for the couple, she said that the appellant himself could make tea for his friend. He also deposed that on 6th May 1998, he received a call from the appellant’s father and was requested to accompany them to the respondent’s house. He states that there were exchange of harsh words and the respondent’s brother pushed the appellant. The respondent refused to join the appellant. After the incident, at the respondent’s place they did not lodge a report with the police. There was no injury on either side.

17. The respondent, examined herself as RW-1. She denied all the allegations levelled and submitted that it was the appellant who wanted to live separately as he felt that his income was too less for family expenditure. She states that she always did the household work, she would return from work by 6.30 to 6.45 p.m. She stated that one day as she was making tea for the appellant he insisted on having mango juice, accidentally she had left the gas on which had turned off by itself. She did not attempt any suicide. She denies having given a stick “danda” blow to the husband. She also states that she had never asked for any property to be transferred to her name nor had any time insulted the appellant’s friends. The respondent further stated that her brother was insulted when he had gone to her matrimonial home to take the couple for the respondent’s younger sisters wedding, she was dropped at her maternal home and she was unable to attend the wedding. She alleged that after Diwali, when the respondent returned home with her new born son she was not accepted by the husband’s family, the door was not opened to her and so she had is return back to her maternal home. She stated that she was willing to stay with the appellant. She agreed that she had written the letters, produced by the appellant but volunteered that she was under pressure, when she wrote them. Her father in law as well as the appellant forced her to write the letters and also made sure that the respondent’s father and brother signed them. She admits to having written these, but states that the step was taken in order to save her matrimonial life. RW2 ‘Vijay Kumar, (wife’s brother) states that his sister wrote the letters under pressure, but that he and his father signed it to save her marriage. He also stated that the appellant did not visit the respondent or the child at the hospital. This version is corroborated by RW-3 “G.D. Vasan. (Wife’s father).

Has the appellant succeeded in establishing cruelty

18. Cruelty is no doubt a ground for dissolution of marriage. The Legislature has, however perhaps advisedly not defined it. Recently, in Vinita Saxena v. Pankaj Pandit, I (2006) DMC 531 (SC)=III (2006) SLT 78=II (2006) CLT 19 (SC)=128 (2006) DLT 387 (SC)=(2006) 3 SCC 778, the Supreme Court, while examining various previous decisions on the topic, held as follows:

“The legal concept of cruelty which is not defined by the statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relation must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complaints. accusations or taunts. It may be mental such as indifference and frigidity towards the wife, denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant’s side, ought this appellant to be called on to endure the conduct. From the respondent’s side, was this conduct excusable. The Court has then 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 not be called upon to endure.

37. As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.

38. If the taunts, complaints and reproaches are of ordinary nature only, the Court perhaps need 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 charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.”

19. The scope of inquiry in this appeal, therefore, is whether the appellant’s grievance that the Trial Court has not appreciated the materials and evidence in the proper perspective, on the issue, and also not taken the cumulative impact of the evidence, is borne out, and whether he had established cruelty by the respondent wife.

20. The allegations of cruelty by the wife, may be broadly classified into four categories:

(i) Inability and unwillingness to help in household chores, and non-cooperation with the appellant during visits by his friends;

(ii) Demand by her to live separately;

(iii) Violent behaviour including suicidal tendency;

(iv) Unfaithfullness.

21. The first category, of unwillingness to help in household chores, has been pressed into service, in the context of a few incidents, viz. that the respondent refused to prepare breakfast when the mother-in-law was ill, refused to prepare tea when guests had come, and was in the habit of returning home late. Indisputably, the appellant lived in a joint family, with his parents. It is also his case that the respondent unreasonably demanded that they live separately. Significantly, however, he has chosen to keep the best evidence of the proof of discord, i.e. the incidents of refusal to help in household chores, or in preparing breakfast, etc., away. Neither of his parents deposed in the proceedings. The Trail Court, to my mind rightly, drew an adverse inference on this issue. Where the matrimonial home comprises not only of the spouses, but parents of the husband, the primary witnesses in respects of such acts, would necessarily be the parents, or other members of the family who can reasonably be expected to be privy to the acts of disharmony. Instead of producing them, the petitioner relied, to support the solitary incident of the wife refusing to do household work, when a friend (PW-3) visited them with his wife, and the respondent wife refused to prepare tea. I am of the opinion that weighed in the balance, the evidence on the whole on this aspect, of refusal to do household chores, is sketchy and vague. It cannot be relied on safely to establish cruelty. A factor which has to be borne in mind is that the wife was working, and perhaps the expectation of the appellant that she would tend to all the household chores, and also continue to work, with equal zest, was itself not reasonable.

22. As regards the allegation that the wife demanded, unreasonably that she and the appellant should live separately, the evidence on this score is the sole deposition of the appellant. Again here too, there is nothing to corroborate the story; the husband’s parents, and relatives have been not produced as witnesses. Besides, the allegation is unsupported by particulars. The further allegation that the wife threatened to commit suicide, and even turned on the gas, besides banging her head against the wall, though serious, are uncorroborated by testimony of any other witness. It is the appellant’s word against that of the respondent in this regard. The respondent deposed that one day as she was preparing tea for the appellant, he insisted on having mango juice. She accidentally left the gas on which had turned off by itself. She denied attempting suicide. Viewed from this perspective, the wife’s evidence appears more plausible. I see no infirmity in the conclusion by the trial Court that the husband appellant failed to establish the allegations on this aspect. Equally, the allegation that the wife insisted that her father-in-law should transfer property in her favour is not only in contradiction with the allegation of her having insisted that the couple live separately from the husband’s family, it is again uncorroborated; neither the appellant’s father nor mother were asked to depose on this issue.

23. As regards the allegation of incidents of violence alleged against the respondent wife, it is again the word of one spouse against another. The husband in the chief-examination, alleged that the wife gave him a blow and in the cross- examination he stated that the blows hit him on his left upper arm and on his head. His testimony is uncorroborated. Besides, what was the occasion, and approximately when did the incident take place, have not been disclosed. It would be unsafe to therefore, conclude that the wife had acted in a physically cruel manner, as alleged. The findings of the Trial Court on this score cannot therefore be faulted.

24. By far, the most serious allegation levelled by the husband against the wife is her alleged ‘affair’ with K.L.Gosain. This is sought to be corroborated by PW-2, a neighbour of the wife’s father. He claims to have seen the two on two separate occasions. The approximate dates, or even particulars have not been disclosed; on the other hand, in cross-examination, he admitted that he saw nothing objectionable. It is a matter of record that Shri Gosain was at that time, a 65 year old man, a social worker, who appears to have known the respondent wife from her childhood, being a neighbour of her father. The mere circumstance of the two being seen together can, by no stretch of imagination be considered an act of cruelty. The respondent was a working woman, and in the course of her employment, would have been surely interacting with several male colleagues. Mere meetings or outings, in such cases cannot be seen by a reasonably placed person in such circumstances, as acts of mental cruelty. The allegation appears to have been levelled solely for the purpose of the matrimonial proceedings.

25. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, I (2003) DMC 685 (SC)=III (2003) SLT 227=(2003) 6 SCC 334, the Supreme Court held that uncorroborated, and untruthful allegations of infidelity can itself be an act of cruelty by a spouse, in the following manner:

“The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”

26. In the present case too, the appellant levelled the allegations of unfaithfulness with calculation, and deliberation, knowing fully well that they were not true Whatever be the motive, the allegations are deplorable, and they reveal his motive in painting the wife in the darkest of hues, at any cost.

27. The next question is the impact of the letters. No doubt, a reading of the letters (which has been admitted by the wife) in themselves do show that there were instances of discord, and the wife had begged forgiveness from her husband. The wife, and other witnesses who deposed in her support, have consistently stated that the documents and letters were written at the behest of the husband and his father; the wife also deposed that she was coerced into writing them. The wife has relied upon two letters written to her father, to that end; significantly, the husband has neither challenged the veracity of those letters, or their correctness. Apart from this evidence, the tenor of the letters indicate that they were not written normally. The form of address of the husband is craven and cringing; the wife appears to be repeatedly begging forgiveness. There is an air of unreality, a false note in all the letters. Seen from this perspective, the explanation for the letters, furnished by the wife, appears plausible. Also, her persistently stating that she was willing to continue in the matrimonial home adds a ring of truth to her testimony. Indeed, during the course of hearing, the wife who was present, again stated that she was willing to stay with the husband.

28. The last issue, which has to be decided is whether the trial Court erred in its approach, and did not consider the cumulative effect of the evidence, while concentrating upon the various allegations. As the declaration of law in Vijaykumar Ramchandra Bhate’s case (supra) would show, there can be no strait-jacket formula of what is cruelty. Single or even isolated acts of grave severity can constitute cruelty; instances, each in themselves insufficient to constitute ‘cruelty’ may yet, collectively, or cumulatively establish the condition; on the other hand, the whole body of evidence may not measure up to the required standard to constitute cruelty.

29. The appellant’s conduct, in levelling false allegations of unfaithfulness, perhaps solely for the purpose of matrimonial proceedings, coupled with his not producing the best evidence that he could have, in my opinion, have to be viewed as a backdrop for the entire evidence led by him. At best it is sketchy; even if the truth of the acts allegations were to be presumed, in the entirety of the case, they do not cumulatively point to a persistently cruel behaviour. The appellant’s grievance on this score, has to fail.

30. In view of the foregoing premises, the appeal has to fail; it is accordingly dismissed. The appellant shall pay the respondent costs of this appeal, quantified at Rs. 20,000/-.

Appeal dismissed.

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