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VIVEK BHATIA Vs. ANJU BHATIA

Judgements favoring men

 
Court: UTTARAKHAND HIGH COURT

Bench: JUSTICES Rajiv Sharma & Sharad Kumar Sharma

VIVEK BHATIA Vs. ANJU BHATIA On 21.9.2017

Law Point:
Respondent wife suffering from border line personality disorder which had effect on attitude of wife pertaining to using abusive language and entering into physical assaults. Husband has proved cruelty by wife. Divorce rightly granted.

 

 

JUDGEMENT

 

For the purposes of brevity, the Appeal No. 82/2015 is taken up as the leading case.

2. Brief facts of the case are that the marriage between the appellant/husband and respondent/wife was solemnized on 6.5.2011 at Dehradun (hereinafter since there being two appeals which has been preferred by the wife and one by husband, they are being referred as husband and wife).

3. The marriage thus held on 6.5.2011 was registered with the Registrar of Marriage at Dehradun. At the time of marriage the husband was working as an Engineer in Jet Airways, Mumbai where after the marriage the wife joined the husband and they lived together for 2 years and discharged their matrimonial obligations as husband and wife.

4. After the marriage and as a consequence of the same a son named Riyarth was born on 12.2.2012, who at the time of filing of the suit was of 14 months of age and was living with the respondent/wife. The respondent/wife used to be too atrocious and often she was in the habit of misbehaving with the appellant/husband. According to the appellant/husband his case was that the respondent/wife used abusive language and the environment in the home was so acrimonious that it became gradually difficult to endure the company of the wife, the reasons for which would follow hereinafter.

5. The husband and wife went to Vaishno Devi along with wife and after their return, they had gone to celebrate the 25th Anniversary of his uncle to Jaipur. While returning, the husband and wife had to travel back to Dehradun by bus, this also created a trouble for him when the wife created a scene at the bus station itself alleging thereof that she is not in the habit of travelling by bus and she had humiliated the husband in public and thereafter they had gone to Mumbai.

6. Respondent/wife, her sister Garima and her cousin brother all had visited the husband’s home at Mumbai and all of them had gone together to Lonawala. For the reasons known, the wife suddenly started reacting rudely at Lonawala and started abusing the husband for no justified reason. The husband’s case was that the behaviour of the wife was unpredictable as she used to create scenes, which was too humiliating for him and it was not one or two incidents which has happened, this continued to be so on number of other occasions.

7. Not even this, she used to carry the family issues on the road and whenever she lost her tamper she used to go on the road create scene and she even used abusive language for the parents by shouting slogans on the road and thereby humiliating the family members before the public at large. The husband’s case was further that thereafter he had to take number of hours to pacify the wife and to make her understand to come back to home. It was a case of the husband that she had at times alleged (Hindi matter omitted).

8. The husband’s case was further that the attitude of the wife was so acrimonious and humiliating that she used to send messages to the husband by saying that whenever he will go to the office she will sleep with the neighbours and she used to pressurize the husband to give her divorce as she wanted to live separately.

9. Not only this, often the wife used to be so unpredictable that she used to lock herself in her room or in the bathroom and used to threaten that she will consume phenyl or she will cut her veins and commit suicide and thereby entrap the husband and entire family members in a criminal cases.

10. It is the case of the husband that when in last week of July, 2011, when the husband’s parents visited Mumbai the respondent/wife quarrelled with them and misbehaved and when the parents of the husband tried to make her understand and to pacify the disputes and requested her to behave properly as they are equivalent to her mother and father, she used to further aggravate the issue and used to misbehave with them and when the husband tried to ask her to behave properly she became more aggressive and even so much so that she alleged that “Hindi matter omitted”. All these scenarios in the home were quite shocking to the parents of the husband and they were often afraid that she may at any stage entrap them in a criminal case and this was spoiling the environment of the family which was too shocking for them.

11. They were further much frightened when they found that the wife used to throw the household articles for no good reasons but, later on, when she realizes her mistakes, she used to apologize for the same and with an assurance that she will not commit it in future.

12. It was in first week of Aug, 2011 when the wife has gone to Dehradun to visit her parents there she was diagnosed that she was carrying 3 months old pregnancy, she stayed at Dehradun till Sept, 2011 and during this period of her stay at Dehradun, whenever the parents of the husband asked her to visit them or to stay with them at Dehradun she refused and she had not even come to meet the parents-in-law, had not given even a curtsy call to them.

13. Later on, when the parents of the wife tried to make her understand she used to visit the in-laws at Dehradun only whenever she had to go out for her medical checkup, whenever she used to visit the parents of the husband after the father-in-law of the wife asked her as to why she is residing with her parents as she can reside with them, her matrimonial house, she alleged that she cannot spent even a single minute with them because staying with them, she alleged that she gets suffocated and does not want to live with the parents-in-law.

14. After some time, the husband visited the Dehradun and took the wife to Mumbai.

15. The husband’s case was that when wife was under her pregnancy, he has taken all care of his wife by getting her regular check-ups ensuring all safety and precaution during the period of her pregnancy. But according to the husband the attitude of the wife remained as ever unpredictable and too humiliating and it went to so unbearable limits that when she was carrying 5 months’ pregnancy, she inflicted punches on her stomach shouting that she will kill herself as well as the child in the womb and whenever the husband wanted to pacify her and requested her that it will be too fatal for the child she became more furious and it became practically very difficult to make her understand as the consequences of her behaviour towards the child.

16. The situation has gone to such an extent and uncontrolled that due to the attitude of the wife not only towards the husband but allow toward the parents of the husband while she alleges that the parents-in-law have ruined her matrimonial home, to express his agony the husband has gave a call to the brother of the wife and her father and informed them about the unpredictable attitude of the wife and in response he was told by them that the wife is now his responsibility and they are not concerned with her and they disconnected the telephone.

17. Under these unbearable circumstances, son was born on 12.2.2012 at Mumbai.

18. It is quite natural that the grandparents of the son visited Mumbai to see their grandson, but on their visit to the hospital she yet again misbehaved with them and she contended that “why have you come over here; go back to Dehradun and take care of your business; there is no need for you to come to Mumbai”. This attitude of the wife was too shocking for the parents of the husband. Not only this, when she was in the hospital she used to start shouting for no good reasons and this often used to create disturbance for the fellow patients and this was objected by the patients.

19. All the expenditures of the operation treatment of the wife in the hospital and delivery of the son was borne by the father of the husband, but the thought process of the wife was so low that she even had gone to such an extent asking the husband to handover all the envelops which were given by the relatives as gifts to child, on the birth of the son.

20. Under the garb of the son being born and she being hospitalized and physically weak she used to force upon the parents of the husband to take care of her by providing her day-to-day requirements while she was under treatment. It was also case of the husband that she used to complaint to the maidservants about the parents of the husband alleging thereof that they are not taking care of her and also that they do not know how to cook food and to take care of their daughter-in-law, in post pregnancy period.

21. The parents of the husband, whenever they wanted to meet the grandson, she never used to permit them to meet the grand child, and she was psychology suffering to such an extent that she used to say that the parents of the husband who visited to meet their grandson, there is a possibility that they may infect her son.

22. In May, 2012 according to the husband, his mother was detected a kidney cancer and she was taken to Mumbai. Doctor advised that the mother of the appellant has to undergo an operation as her right kidney was to be removed. During her course of treatment the respondent/wife neither showed any sympathy to her mother-in-law nor had taken any care of her, which a wife should have done voluntarily towards her parents-in-law.

23. It is the case of the husband that before two days when the operation of his mother was scheduled, respondent/wife misbehaved with the mother of the appellant. When the husband found that there is no respite in the attitude of the wife, and she was not providing any assistance to him during this period of crises. When the mother of the husband was ailing he called upon his friend Yogesh Garg and they took the mother to Bhakti Vedanta Hospital where she was operated over there and during this period the wife never visited her mother-in-law and what to say about looking after her.

24. It was also the case of the husband that whenever she was requested to stay in the hospital and to take care of his mother, during the course of treatment, the wife alleged that she is your mother, its your responsibility and since it is his mother she cannot leave her child and stay in the hospital. From this attitude she often used to make out ways for harassing the husband and often she used to say that she enjoys seeing the husband in trouble.

25. Immediately after the discharge of the mother, after operation, the father of the husband was also operated upon for eyes and while he was taking care of his father the wife never showed any concern towards his mother who was at home with her after being discharged from the hospital.

26. According to the husband the attitude of the wife was so atrocious that she often used to quarrel with the husband saying that take away your mother from her home as either she would remain here or his mother as by keeping her in Mumbai after her treatment she contended that the husband was trying to befool her. As per the husband the plaint allegation was that in one of a function she had slapped the mother-in-law and abused her saying “Hindi matter omitted”.

27. When despite of all efforts made by husband for making her understand being consistently extended by the husband to his wife, not to behave in such a manner remained un-responded and unheeded, he was left with no option except to call one of his friends Deepankar, who took the parents of the husband to his own house and kept them there for five days.

28. The husband’s case was that he has informed about the said incident to the parents of the wife, who on telephone asked her to pray for forgiveness from her parents-in-law and also asked her to call back the parents who had gone to Deepankar’s home. Even the husband’s case was that he tried to call the father-in-law to come to Mumbai and to make her understand but the father-in-law declined to come to Mumbai by saying that it was not possible for him to leave the business and come to Mumbai and when the husband asked his father-in-law on telephone that whether he has any concern with the matrimonial life of his daughter he replied that it is your matrimonial life; you take care of it and he disconnected.

29. The husband alleged that when respondent/wife slightly became docile he called back his parents to his home. She also accused husband that the relatives of the husband often used to instigate her against her husband, and she contended that this was one of the reason that she has believed their version and used to misbehave with the parents-in-law.

30. The husband’s case was also that she used to say that Riyarth was not his son, he was her son and she would very soon give divorce to him. The husband contended that the attitude of the wife seems that she is suffering from some mental disorder and when the parents of the husband left from Mumbai to Dehradun she has beaten the small child and thrown him on the bed and used abusive language.

31. According to husband, when he tried to restrict her from using abusive language, she became so aggravated and she hit on his gonads, she was of so imbalanced mind that she used to beat herself by sleepers and used to exert threats that she will cut her veins and would commit suicide, but things did not yield any result. The husband’s case was also that when husband used to make her understand that this attitude is not very conducive for a domestic life and more particularly when they have a child to whom they bear a responsibility to build his career and up-bring him in a healthy environment she used to abuse further and alleged as under:

“Hindi matter omitted”

32. The husband has taken the wife to Dehradun so that she may live with her parents for some time and that would somehow revive her attitude towards him and his child. While leaving from Dehradun to Mumbai the husband has given Rs. 10,000 to the wife in front of her father so that she may be able to meet her expenses during her stay at Dehradun and to meet her personal requirements. On this even too the wife started shouting as to why he has handed over the money in front of her father.

33. After about six months the mother of the husband was diagnosed that she was having enlarged heart and for that she was to be scanned ever six months. During this phase the husband was quite troubled and often to pay attention to his mother and used thinking about that how to take care of his ailing parents single handedly and discharge his honorous duty towards her parents as son. Simultaneously, during this period, the father of the husband was also suffering from some diseases in his brain and for its cloning he was operated five times, but even during this period too the wife continued to inflict all agonies by her attitude and never supported the husband or his parents during this period of medical crises.

34. It was the case of the husband that when on 29.1.2013 he had gone from Dehradun to Kanpur, the wife had abused the parents in front of all the guests who were attending the marriage at Kanpur and in anger she left the marriage place and had got to G.T. Road from where it became very difficult for the husband to get her back which he could succeed only after 2 to 3 hours of arduous effort.

35. According to the husband, there was another incident when on 2.2.2013 the husband along with the family members have gone to Jaipur to attend the marriage of one of the relatives. At the station itself the wife started misbehaving with the parents of the husband and threatened them that she would jump in front of the train along with the child and commit suicide. The husband apprehended that since she being a lady of a distorted attitude, anything was expected from her, hence, somehow, the husband and his father took the child and entered into the train. The awkward situation at the station was averted. During the course of journey to Jaipur, the wife has sat near the toilet along with the child despite being aware of the fact that the child was suffering from high fever due to which the husband had not slept for the entire night in front of toilet of the coach because he was apprehending anything untoward that the wife would be jumping out from the train. The husband informed about the entire incident which has chanced in the train journey to the parents of the wife, who on telephone said to leave the wife because the attitude of the wife is so incorrigible inevitable observing that Jaipur is a big city, she can go wherever she wants and they disconnected the telephone. At Jaipur an incident chanced where the wife had thrown her Sandal, on her father-in-law and got hold of his collar and pushed him from the floor. All these attitudes, according to the husband, shows that she was not a lady with whom it is practically possible to spend life because her mental disorder was such that nothing would be able to pacify her attitude and to make her understand and threat always persisted that anything could happen at any time.

36. One of the relatives who was attending the marriage to the husband and asked him that there is a very good psychotherapist at Jaipur and he can take his wife to the psychotherapist for her treatment. On 6.2.2013 the husband has taken wife to a hospital where she was examined by the psychotherapist. The Doctor Jayshree, who had attended her, gave her report on 8.2.2013 and she informed that the wife is suffering from a disease of being too emotional personality and she further advised that she should be taken to Mumbai for regular treatment. On this, the husband has taken her to Mumbai and got her treatment at Bhakti Vedanta Hospital.

37. The Doctors attending upon her at Bhakti Vedanta Hospital informed on 14.2.2013 that she was suffering from border line personal syndrome, which is a disease, by which a person suffers from a sudden spurt of aggravation, she was placed under treatment, but there was no change in her attitude because the problem which she was suffering was aggravated further after sometime.The husband has taken the wife for treatment to another Doctor called as Dr. Dhara, who advised that the nature of problem which the wife was suffering is such that the continuance of her with the child would be too dangerous and, thus, advised that the child should be kept away from her. On facing with the situation, the husband called his friends Subodh and Santosh for his help.

38. The husband’s case was that he had asked Subodh to take care of the child by staying at home and the husband along with another friend Santosh has gone out to search the wife who had left home and after some time he found that the wife was roaming around in the city and when she was asked her come back to home she physically assaulted the husband.

39. The husband’s case was also that to inflict injuries on herself she even used to take over doses of the medicine prescribed to her by the doctor and she also used to lock herself in the room. After consuming an over dose medicine she placed a suicide note in front of her room in which it was written “Hindi matter omitted”.

40. On 22.2.2013, according to the husband, she was taken to hospital called as Mayana Hospital, which is a hospital basically for the patient suffering from mental disorders, there Dr. Sujai who treated upon her, advised the husband to admit her in the hospital and on the next day another expert who attended her i.e. Dr. Devendra Savey, he gave his report that she is a patient suffering from border line syndrome, which is a nature of disease which a patient suffers from aggravated aptitude of mind. She was prescribed 10 days medicine and during this period when, she had to consume the medicine as she was further advised not to feed the child. The husband contended that he was always under fear that the wife can commit suicide at any time because on 22.3.2013, she has locked herself in the room along with the child and she has beaten the child for no valid reasons, she also threatened that she will consume over dose medicine as prescribed and then she will feed the child. Thus the husband felt that it is not safe for the child to stay with the wife and thus there was no other remedy left except to take custody of the child and, thus, he took the child and via air brought him into Dehradun.

41. The husband contended that after the said incident they came to Dehradun and met the parents of the wife and informed them about the incident which has taken place in Mumbai, but the parents of the wife had not cooperated him in any manner to tackle their daughter or the help the husband to overcome the situation.

42. At Mumbai too the husband has taken the wife to Doctor Pratibha Sharma a Psychologist for a check-up in Doon Hospital, during the course of treatment, for help the husband contended that he call upon the parents of the wife, but they had avoided to extend only help which adversely affected the family. According to the advice extended by Dr. Pratibha Sharma the wife was kept at the parents’ home of the husband and husband and his parents were taking care of her in all aspects. The Doctor further advised to remove all dangerous things which could be harmful, for example; lock, knives and other such household articles which can inflict injuries.

43. Dr. Pratibha Sharma advised the appellant/husband and referred the respondent/wife to Dr. J.S. Bisht who was an expert psychotherapist of Doon Hospital who advised that the wife is suffering from a mental problem and advised the same prescription as she was taking in Mumbai.

44. The husband’s case was that all these aspects pertaining to the ailment of wife and her attitude was concealed from being brought to the knowledge of the husband and to his parents at the time when the marriage was being settled and, thus, the family members of the wife had misled the husband and his family members and got the marriage settled by concealing the facts because as per the reports which had given by the Doctors attending upon the wife, her ailment which she was suffering from was right from her childhood and had continued for considerable long time.

45. The husband has filed the petition apprehending that the husband and his family members may be entrapped by the wife in false civil and criminal cases, because if they had been made aware of the ailment of the wife prior to the marriage they wouldn’t have solemnized the marriage and thus he contended that it was a very planned and in a conspired manner in which the marriage was settled and thus this in itself will tantamount to be a cruelty to the husband and hence he was entitled for a decree of divorce as the wife was not competent in any manner to take care of the child and husband looking to the ailment and behaviour, and thus their future was not safe in case if the marriage is forced to continue because she may at any time commit suicide. Husband also expressed his helplessness when all his efforts made to eradicate the ailment failed.

46. The wife appeared before the Court below and filed her written statement along with the counter-claim paper No. 74-Ka. In the counter-claim she sought a relief for restitution of conjugal rights. During the pendency of the proceedings of the suit, the husband has filed an application under Section 26 of the Hindu Marriage Act, 1955 praying for providing the custody of the child Riyarth because looking to the ailment of the wife it was not safe for the child to continue to live with her.

47. In response thereof when the wife filed the written statement, she came up with a case that the suit of the husband was not maintainable under the Hindu Marriage Act and deserves to be dismissed, she further submitted that the husband cannot take the advantage of his own mistakes and thus the petition filed by the husband for dissolution of marriage deserves to be dissolved by invoking Section 23 of the Hindu Marriage Act, since being based upon false allegations and false grounds. She contended that looking to the backdrop under which the suit has been filed it was rather the husband who is to be accused of inflicting both physical and mental cruelty on the wife, she submitted that the filing of the suit is not based upon the free will of the husband but rather on the advice of his parents, who have a dominating hand in the decision making process of the husband.

48. She contended that the husband has not come up with clean hands and rather has deserted the wife for no reason, but despite of all this cruelty she submitted that still she wants to retain the family relationship after forgetting whatever has happened in the past as she loves the husband, and does not want to live separately.

49. She submitted that the parents of the wife wanted to have a normal marriage but looking to the pressure exerted by the parents of the husband, the parents of the wife had spent handsome amount of about Rs. 18 lakh in solemnization of marriage which was beyond the financial capacity of the parents of the wife and despite the fact that the parents of the wife had informed the husband’s family about the probable gifts and valuable which are to be exchanged in the marriage she contended that the family members of the husband were not satisfied which is the reason for the entire dispute.

50. While admitting part of the pleadings of the plaint she contended that the pleadings raised by the husband in Para 4 of the plaint is absolutely distorted as she contended that she is an educated lady and it can never be presumed that she would be using filthy language towards her in-laws and contended that the pleadings thereof are based upon the self created fiction of the husband. She denied the allegations levelled against her that often she used to go out from the house and creates scenes and in counter plea thereof she submitted that her stay in Dehradun for last 27 years she had never ventured out for even a distance of 5 to 10 kms. Hence there is no possibility for her that in city like Mumbai, she would be roaming around the places which are unknown to her. She alleged that whenever the husband used to come back home after consuming liquor he used to misbehave with her and he used to ask the wife to go out of the home and not to return back and she contended that at times she used to sit on the staircases of the flat for hours together, she alleged that the husband has got a very bad habit of excessive drinking and smoking.

51. While denying Para 5-A of the plaint she stated that the story developed by the husband that they came to Dehradun by plane was wrong, she submitted that on 1.8.2011 she came to Dehradun by train along with her parents and straightaway went to the matrimonial home. She alleged that when she was staying at Dehradun, she was diagnosed to be pregnant and she contends that she informed the husband, but on hearing the news she contended that the husband was not happy and he asked her to get the child aborted, as according the wife she contended, that the husband pleaded that his own life is not settled and at this stage he does not want to become father. She contends that after hearing the news of pregnancy the husband was not happy, she pleaded that she requested the husband that she wants carry with the pregnancy, as she wanted to bear a child and she contended that the husband told her that even if she gives birth to the child, he is not in position to take any responsibility of the child as there is dearth of finances.

52. The wife pleads that she tried to persuade the husband to permit her to give birth to the child as she thought that his or her birth to the family would bring lot of happiness on which the husband disagreed. She contended in her written statement that the husband was in the habit of being extravagant and spent his earning on himself only without taking care of his children and his family and that is why he was trying to avoid getting the child and she further submitted that in day-to-day functioning of the household work the husband used to accuse her in the manner in which she used to perform her matrimonial activities.

53. She denied all the allegations which the husband has levelled against her about the misbehaviour of her with the parents-in-law. Her case was also that during this pregnancy and when the child was being born the husband’s attitude was to always ensure that the child does not survive as he was more interested to save money rather than to derive the happiness of the birth of a child in the family. She further contended that she wanted the delivery to take place at Mumbai so that they may be avail the benefit of insurance policies at Mumbai but the wife’s case was that the husband avoided to have delivery at Mumbai. She further submitted that because a cesarean child was borne due to which some expenses were incurred in the birth of the child which was not welcomed by the husband and he used to accuse her, as to why she has not given birth to a weak child so that she could have had a normal birth instead of cesarean and the expenditure would have been much reduced. She submitted that as a matter of fact the husband and his parents are the person of greedy attitude who gave more importance to money rather than the happiness of the birth of the child.

54. She pleaded that after the delivery of the child for a considerable long time the husband has never visited Dehradun, and whenever he had to visit, he had never shown his willingness to organize any function and used to visit the in-laws as if he was attending a function. She contends that it is an admitted fact that the mother of the husband was suffering from cancer in kidney and she was operated upon but she denied the fact as pleaded by the husband that she has not taken care of her mother-in-law when she was ailing.

55. There had been a number of small incidents which were pleaded by the wife pertaining to the attitude of the parents while they were served with the food pertaining to the incident where the parents of the husband has thrown the food prepared by her and asked her not to cook food for them anymore. When they have accused her of not performing the household works, she contended that all these small incidents used to increase her agony and it became difficult for her to bear all these tortures and she used to inform about the incidents to her parents.

56. She contended that the parents of the wife had organized a very big function called as “Chola Samaroh” on the birth of child, but the husband and his family members had never shown their satisfaction to the function, never participated in it as they should have. In her reply she admitted the fact that when the husband has dropped her to Dehradun he handed over sum of Rs. 8,000 and not Rs. 10,000 as pleaded in his plaint, she contended that while she was staying at her place at Dehradun the husband had puffed out the cigarette smoke on the face of her father, but since he was the son-in-law, she contended that her father avoided to react to it.

57. She admitted the contents of Para 8 of the plaint so far it related to the disease of the mother and that her heart has inflated, she contended that the husband had lust of money and despite the fact that he was earning about Rs. 1,25,000 from his services, but still he wanted the wife should work, she contended that after the birth of child, when all the desire of the husband stood vanquished he wants to desert her so that he may live freely and may not feel the burden of taking care of her and the child, her allegation was also that the husband was so ignorant that even whenever son Riyarth used to fall ill he never used to take care of the child and she had to travel all through in an auto-rickshaw to take him to the hospital for treatment.

58. In reply to the pleadings of the plaint pertaining to the treatments which had been performed on the wife, has been denied and she alleged that whenever on the date of her appointment with her doctor, she came to the hospital she was made to be attended by a Doctor who was the friend of the uncle of the husband. In support of the clarification that she was not suffering from any mental ailment she pleaded that Dr. Pratibha Sharma, who attended upon her for 3 months had opined that the wife is quite normal and she is not suffering from any mental problem. It was thereafter, that the husband has deserted the wife and left for Mumbai and even after a period of 20 months he had never come to the home to know about the whereabouts of the wife and his son. She further submitted that she got herself examined in the Institute of Human Behaviour and Allied Sciences which is renowned institution of the country where the Doctors have given a report that the wife is not suffering from any mental ailment and there is no necessity for her to take any medicine.

59. She contended that all the allegations about the mental ailment as levelled by the husband are false as she is not suffering from any mental disease even prior to her marriage she was hale and hearty and at the time of marriage when the same was being settled nothing was concealed to be brought to the knowledge of the parents of the husband. She further denied to have given any threats to them for lodging any criminal or civil complaints, against husband and his family members.

60. She contended that both husband and wife had known to each other very well prior to the marriage as they used to talk to one another for hours together on telephone and the entire story pertaining to the mental ailment which has been pleaded by the husband in his plaint apart from being false was pleaded with a deliberate intention to mislead the Court so as to establish the factum of cruelty, which is one of the ground contemplated under Section 13 of the Hindu Marriage Act for dissolution of marriage. She contended that perhaps the truth remains that the entire story has developed by the husband solely for the purposes to avoid taking responsibility of her and her child. She submitted that she has never misbehaved and mall-treated the husband or his parents and the truth is that she has never committed any cruelty and all the allegations which has been levelled against her are baseless and unfounded and on the pressure being exerted by the parents. She further in her written statement submitted that since according to the report submitted by the Institute of Human Behaviour and Allied Sciences, it has been established that she is not suffering from any mental problem and thus the continuance of child in her custody is not detrimental to the interest of the child, rather keeping the child in the custody of the husband would be unsafe as he is in the habit of smoking and taking liquor.

61. She submitted that after the birth of the child on 2.12.2013 almost 5 years have lapsed and the husband has never shown any affinity and affection towards the child nor has ever made any effort to meet the child in any of the functions. In response to the written statement the husband filed his replication Paper No. 76-A and denied the pleadings of the written statement and the counter-claim and also denied the fact that the plaint submitted by him is not in consonance to the notified Rules as provided under the Hindu Marriage Act, and submitted that the plaint is maintainable rather he submitted that her counter claim pertaining to the restitution of conjugal rights since the wife herself is guilty of staying away from the husband and guilty of failure in discharging of her matrimonial obligations her relief as prayed under Section 9 of the Hindu Marriage Act would be barred by Section 23 as based on absolutely fictitious plea.

62. The husband in his replication submitted that the allegations levelled by the wife that the petition under Section 13 filed by the husband is mala fide so as to exert pressure on the wife to agree upon for a dissolution of marriage by consent and thus the proceedings drawn under Section 9 by the wife deserves to be dismissed. In the replication he denied the allegations levelled by the wife pertaining to the veracity of the claim raised by the husband in the plaint.

63. Based upon the aforesaid pleadings the learned trial Court framed the following issues.

“Hindi matter omitted”

64. In support of his contention the plaintiff presented himself in the witness box as PW.1 and the wife presented herself as D.W.-1. She also presented Dr. Pratibha Sharma as D.W.-2. The husband produced the documentary evidences Paper Nos. 85-Ga to 8-Ga, which is the report given by the Psychotherapist Centre Jaipur, the treatment slips, the report of Dr. Suyogya Prabhugaonkar, the document pertaining to the treatment with Dr. Devendra Sabey, the documents pertaining to the treatment by Dr. Pratibha Sharma, document pertaining to the treatment under Dr. J.S. Bisht Doon Hospital, the slips pertaining to her check-up conducted by Psychologist and the bills in relation thereto. He produced the suicide note in her hand writing which was photographed by the husband by his mobile.

65. The wife in support of her evidence filed the list of documents paper Nos. 95-Ga to 13 which pertains to the prescription of Doon Psychotherapist Centre where she was attended upon by Dr. Prabhita Sharma on 28.3.2013, document pertaining to her registration in Lok Nayak Hospital dated 13.5.2013, G.B. Pant Hospital registration card dated 15.5.2013, OPD card of Doon Hospital dated 20.5.2013 and 22.5.2013, documents pertaining to the treatment with the Institute of Behaviour and Allied Sciences dated 27.5.2013 where she was attended by Dr. Rajesh Rathi, the mark-sheet of 13.7.2005 issued in her favour from H.N.B. Garhwal University of 1st year Bachelor of Arts, 2nd year Bachelor of Arts, the mark sheet of MA 1st and 2nd years, certificate of All India Bachelor of Vocation Training etc.

66. Based on the aforesaid pleadings and evidence the learned trial Court by the impugned judgment dated 24.7.2015 passed the following decree:

(i)

The suit for dissolution of marriage under Section 13 of the Hindu Marriage Act based on cruelty was decreed.

(ii)

The counter-claim filed by the wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights based on desertion was dismissed, and

(iii)

The application under Section 26 filed by the husband for custody of Riyarth was dismissed. Hence the present appeals.

67. The Appeal No. 80/2015, Vivek Bhatia v. Anju Bhatia, which has been filed by the husband is against the rejection of his application under Section 26 of the Hindu Marriage Act whereby the learned trial Court has denied the grant of custody of Riyarth Bhatia, the appeal has been preferred on the following grounds:

(i)

The judgment is based upon improper exercise of jurisdiction.

(ii)

Maintaining of custody of the son with the wife would be gross failure and miscarriage of justice.

(iii)

The Court has failed to consider the import of Section 26 of the Hindu Marriage Act.

(iv)

The Court has wrongly decided Issue No. 2 without reasons while denying custody.

(v)

The Court while recording finding on the behaviour of wife and mental state has wrongly decided Issue No. 2 pertaining to Section 26 despite the fact of having accepted the fact of disease which the wife was suffering from because the attitude of sudden behaviour of anger may also become heinous and may affect the child.

(vi)

The Court failed to consider that it was unsafe for a child who was of only 3 and ½ years of age to ask him to live with the mother who was suffering from a mental disorder.

(vii)

The Court failed to consider that whether it is safe to give custody of child to the spouse who was suffering from border line personality disorder.

(viii)

The Court failed to consider that looking to the behaviour and suffering of the wife who can attempt suicide or cause danger to the life of the son.

(ix)

The trial Court failed to consider that the wife was incapable to take care of the child and to maintain him and she was not in a position to give a good homely atmosphere as excepted from a Hindu family.

(x)

The Camily Court failed to consider that looking to the husband’s engagement and the conditions of family he would be in a better position to give good atmosphere, love and affection and safe and healthy life to the child as he has to work 15 days in a month and rest of the time he can take care of the child and all the more reason would be that the parents of the husband were residing with the husband.

(xi)

Since the wife is not in a sound mental state to provide better healthy and safe life to the son, she would not be able to provide a better education and he would be at the mercy of the parents of the wife despite of having his own father.

(xii)

He expressed that he has got all the more love and affection for the child and does not want his life to be spoiled due to the dispute of husband and wife.

(xiii)

He pleaded that as far as he known the child has grown to about 3 and ½ years yet he has not been admitted in the school.

(xiv)

Comparatively he is in a better position to take care of day-to-day requirement of his son Riyath and provide him safe and secured life.

(xv)

The finding on Issue No. 2 pertaining to Section 26 with regard to the custody was not rightly decided.

(xvi)

The judgment on Issue No. 2 is based upon conjectures and surmises without recording any finding on the same.

68. The Appeal No. 82/2015, Anju Bhatia v. Vivek Bhatia, which has been filed by the wife against the grant of decree of divorce under Section 13 of the Hindu Marriage Act thereby dissolving the marriage dated 6.5.2013, the appeal has been preferred on the following grounds:

(i)

The judgment is against facts and pleadings and material evidence available on record.

(ii)

The judgment is based upon assumption and presumption in favour of the husband dissolving the marriage ignoring the factual aspect and other circumstances.

(iii)

The judgment is the consequence of non-application of mind as has not considered the conduct of wife and her intention to live with her husband and with regards to the safety and future of the child.

(iv)

The learned trial Court has failed to consider that there has been a condonation of the conduct of the wife by the husband, as they have lived together and gave birth to a child, thus the marriage ought not to have been dissolved.

(v)

The learned trial Court has failed to distinguish between the major and minor differences between the husband and wife and to the manner in which they are to be classified as to be a cruelty requiring the dissolution of marriage.

(vi)

The learned trial Court has not considered the fact that to prove cruelty apart from producing himself in the witness box the husband has not produced any other independent person to proof cruelty.

(vii)

The averments in the divorce petition on various facts are with regard to the misbehaviour with the parents of the husband but the husband has failed to produce them in the witness box even when they were capable to appear, hence, an adverse inference was to be drawn.

(viii)

The learned trial Court has failed to consider the fact that the averments made by the husband in the petition under Section 13 of the Act, were ex-aggerated and were afterthought. All the allegations pertaining to the attitude of the wife towards the husband and wife had been falsely interpreted without taking into consideration that the wife was a well educated lady and the allegations leveled against her were unexpected.

(ix)

The proceeding sunder Section 13 has been filed with an intention to conceal the bad habits with which the husband was suffering from.

(x)

The learned trial Court has not considered the fact that the human being with the passage of time and age suffers from mental changes and these changes do affect the thought process and at time a person may be under and influence of depression may react in the manner the wife has done but as per wife it is not sufficient to dissolve the marriage.

(xi)

She contended that the reliance placed upon the medical reports and treatment of the wife holding her to be suffering from, ‘border line disorder’ the finding is bad as it was without considering the report of Institute of Human Behaviour and Allies Sciences.

(xii)

The learned trial Court has proceeded on conjectures and surmises ignoring the evidence of D.W.2 Dr. Pratibha Sharma who appeared in the witness box.

(xiii)

The learned trial Court has wrongly interpreted the statement of D.W.2 Pratibha Sharma where she has stated that such a behaviour it is a consequence of tendency of changed behaviour, which is quite normal and natural and cannot be taken as to be the ground of divorce.

(xiv)

The trial Court has failed to differentiate between the pleading and proof because a bundle of pleadings are required to be established by the proof and by cogent evidence which was not decided by the Court.

(xv)

The husband failed to prove any allegations, misbehavior and cruelty against the wife.

(xvi)

The trial Court had without any basis held that the behaviour of the wife towards the husband and her in-laws was cruelsome, abnormal and without any cogent evidence. The trial Court has failed to consider and had rather ignored the fact that by compelling the wife to live at Dehradun is by ignoring her intention of readiness and willingness to live together is cruelty by husband.

(xvii)

The judgment is based upon non-consideration of the import of the provisions contained under Section 23 of the Hindu Marriage Act.

69. The Appeal No. 83/2015, Anju Bhatia v. Vivek Bhatia, which has been filed by the wife against the denial of Section 9, whereby the restitution of conjugal rights as a counterclaim has been denied by the trial Court, the appeal has been preferred by wife on the following grounds:-

(i)

That the judgment is against the fact pleadings and material available on record.

(ii)

The judgment impugned has been rendered based on pick and choose method which has affected the decision making process resulting into dismissal of counterclaim.

(iii)

The evidence on record has not been considered in its totality.

(iv)

The wife is willing to live with her husband and to discharge her matrimonial obligations after condoning all acts, comments, behaviour and attitude of husband towards her.

(v)

The trial Court has proceeded on assumptions and presumption in favour of the husband and dissolved the marriage between them by ignoring the factual aspects and surrounding circumstances.

(vi)

The trial Court has not considered the controversy from judicious mind in its true prospective and had not considered the possibilities and preponderance involved in the case and had ignored the intention of the wife to discharge her matrimonial obligations.

(vii)

The trial Court has failed to consider that continuance of the relationship in such circumstances would have been safe for the son and to safe for the marriage, which has been settled and considered as sacrament amongst the Hindus.

(viii)

The trial Court failed to consider that the husband has condoned the allegations of wife which lead to the birth of the child.

(ix)

The wife’s case was that declining restitution based on minor discrepancies which normally exists between every husband and wife will not constitute to be cruelty or desertion, calling for dissolution of marriage.

(x)

The trial Court has ignored the facts that though the husband has levelled allegations against the wife about the cruelty against him and his parents but by the conduct of the husband as he continued to live with the wife he has condoned the behaviour, hence the trial Court ought to have continued the matrimony.

(xi)

The trial Court failed to consider that the allegations levelled by the husband were too exaggerated and which were unexpected from an educated wife.

(xii)

The trial Court has ignored the evidence of Dr. Pratibha Sharma, who was examined her, where she has observed that she was not suffering from any such chronic problem.

(xiii)

That forcing the wife to live at Dehradun ignoring her readiness and willingness to continue to reside with the husband renders the judgment to be bad.

(xiv)

The wife’s case was that the trial Court has absolutely ignored the provisions of Hindu Law particularly Sections 9 and 23 of the Hindu Marriage Act.

70. The learned Family Court primarily concentrated on Issue No. 1 which was of a grave concern under the set of pleadings raised by the parties which pertained to the pleadings in relation to “cruelty”. The learned trial Court while considering the pleadings held that looking to the pleadings and evidences on record the wife was suffering from personality disorder with regard to the incident of personality disorder the husband has submitted, that the aggravated attitude was so common and prevalent that it was practically impossible to remember each and every date when such an incident has chanced, though it always carved a threat of anything untoward happening.

71. The husband in his pleading has contended and also based upon the appreciation of the facts and evidence on record shows that her attitude and threats, exerted by her of committing suicide by adopting various modes, and the fact that she being taken to the Doctor by the husband and placing her under treatment at various places at Jaipur, Mumbai and Dehradun etc, it has been a consistent report that she was having some psychological problem, wherein the doctors attending upon her, at all the three places have opined that she was suffering from the personality disorder. There might have been a minor variation in the opinions extended but invariably all the doctors have observed that there had been certain abnormality in the behaviour of wife, due to the aforesaid disease due to which she used to be in a state of aggravated mental behaviour.

72. On the pleadings raised in the plaint, and in response to the plaint allegations there has been no specific denial by the wife that in an aggravated state of mind she often used to venture out of the home and humiliate the family members by creating scene on the road. This attitude apart from being causing humiliation to the family in public was also spoiling the family environment where the aged old parents who were ailing were also forced to face the arbitrary and atrocious attitude of the wife. Thus as a matter of fact denial made is evasive.

73. With regards to the suicide note which she placed on the room on 22.2.2013, she has rather in her statement admitted in her cross-examination as under:

“Hindi matter omitted”

74. At least on reading of the aforesaid statement given by the wife in her cross examination she admits the fact of having written the suicide note may it be under whatsoever circumstance, but not establishes that it was a conscious admitted fact of wife, such type of a threat exercised by the wife which has been admitted by her itself amounts to cruelty as husband would always apprehend anything may chance creating more trouble.

75. Rather she in her statements admits the fact that after consuming overdose medicines she had often locked herself in the room along with the child, keeping the family at lurk of any untoward happening may occur. This in itself where the entire family is kept under the threat of the wife committing suicide will amount to cruelty. Before learned trial Court while scrutinizing the statement of D.W.2 Dr. Pratibha Sharma who was adduced by the wife herself as a witness has submitted as under:

“Hindi matter omitted”

77. This statement of D.W.2 could be read from two view points that at least at the time when the dispute arose, resulting to filing of case for dissolution of marriage, she was suffering from the disease and further that she was put under the treatment and the Doctor too has opined she was suffering from personality disorder.

78. One of the witness, Doctor Pratibha Sharma had submitted in her statement that the patients who suffer from personality disorders, they have got a inconsistent change of mood, further D.W.2 has admitted the fact that she too has witnessed that the wife suddenly becomes aggravated, suddenly she shows that she is quite annoyed, suddenly she shows an expression of unhappiness and also of anger. D.W.2 further submitted that such a patient indulges into the peculiar acts at time shows excessive anger and their act and actions are unpredictable, in such a state sometimes yells and is unable to adjust him or herself and there are the instances, when such a patient becomes offensive.

79. The Court held that though right from the beginning the wife used to deny such type of ailment but according to the statement of D.W.2 the trial Court held and on scrutiny of her statement, she has experienced the changed behaviour of the wife. The trial Court held that on scrutiny of statement of D.W.2 Dr. Pratibha Sharma she herself has experienced the inconsistent and changing behaviour of the wife, which the Court had held that on the scrutiny of the statement of D.W.1 and D.W.2 the wife was suffering from a mental disease though the nature of disease may not be clear but the attitude and the behaviour was quite apparent.

80. It is also proved on record and by evidence and rather also admitted by wife in her statement that the wife had pasted a suicide note in front of her room the photocopy of which finds place at paper as Paper No. 24-C-2/8, but simultaneously the statement which she has made in cross-examination, rather she admits the transcription of suicide note also and only explains as she too is not aware as to under which circumstances she has written the suicide note, which the Court held that she has admitted the suicide note. If a spouse admits the writing of suicide note it goes without saying that there is always a threat perception which prevailed over the members of the family that untoward can be happened at any point of time resulting into creating the difficulties for family and entrapping them in criminal proceedings.

81. In the cross-examination the wife has also admitted that she has sent a legal notice, asking the husband to reside with her, wherein she has contended that she has expressed her willingness to live with the husband but simultaneously she also admits, that in the notice thus send by her through her Advocate Mr. S.K. Gulati. She has also sent the notice to the society, managing the flat belonging to the husband at Mumbai, wherein she admits that she requested the society not to permit the husband to enter the flat because of the various disputes which has arisen between them. The society initially was not permitting the husband to enter into the flat. She contended that she is not instrumental in instigation of the society to restrict the entry of the husband in the flat, she admits that in the society where they resided together there has arisen a dispute between her and her husband and a warning letter was issued to the husband, which she had placed on record in the proceedings under Section 24 of the Hindu Marriage Act as Paper No. 94-Ga in which she admits that the notice thus sent to the society she has requested the society to impose a restriction upon the husband from selling, letting sale, or lease out the property.

82. It is an admitted case of the wife that in pursuance to her notice to the society, the society has asked the husband to submit a response. According to the husband he has purchased the flat at Mumbai by talking loan from the bank in which the wife is residing and the husband is residing in another flat on rent. This would definitely constitute to be cruelty. He submitted that since 29.1.2013 when they had gone to attend the marriage at Kanpur and the wife has misbehaved with the parents-in-law and has left the husband and has gone to G.T. Road, Kanpur, though she returned after a couple of hours, this had occasioned on number of occasions too would constitute to be continuous cruelty.

83. Almost she has virtually admitted about her attitude and the incidents which has been narrated by the husband indirectly in the cross examination, she submitted that at the railway platform a dispute did arose between the wife and the husband and since the train was about to arrive the wife was in a shouting spree at the platform and the people standing at the platform and created trouble, came to rescue him and the child was given in the custody and somehow to avert the situation the wife contended that she entered the train. She contended that looking to the fact that the attitude of the parents-in-law had never changed as all throughout the journey till they reached Jaipur none of them communicated with the wife nor even provided her food. She alleged that while they were participating in the marriage she was misbehaved by in-laws. She further in her cross-examination submitted that for the first time a dispute arose between them in 2012. She admitted that she has complained to Navdhar Police Station, Maharashtra against the husband in 2012. She admits that after the incident of 2012, no such acrimonious behaviour was shown by the husband against the wife.

84. She submitted that the assertions made by husband that whenever there was a dispute which arose between the husband and wife, Shalu Dheengra, Deepika Dheengra and Garima Dheengra used to prevent them. The wife denied the said fact and submitted that she loved Vivek and there was no dispute between them nor there was any dispute with her parents-in-law nor there had ever occurred any misunderstanding. She submitted that the husband loved her and behaved with her in a good manner.

85. With regards to the allegations as raised in her written statement to the effect that the husband used to abuse her she gave a contradictory statement at one place she submitted that after 2012, there had never arisen any dispute while on the other hand she submits that she does not remember the date and month in which such an incident has occurred in 2013. Looking to the statement to the accquisition made by the husband to the wife no specific averments pertaining to the dates and events have come on record nor she has been able to prove the same.

86. The learned trial Court has recorded a finding that with regard to the incident of physical assault in 2012, against which she has lodged a complaint before P.S. Maharashtra, she submitted that she suffered minor injuries, but later on she said that there was no injury and she submitted that the incident which was reported to the police station was done in the presence of the parents of the husband, but then she denied with regards to the dates and the time at which the incident occurred, she submits that the police asked the husband to get the medical examination conducted on her but the same was not done. On a scrutiny of the statements of wife with regards to the incident of 2012 and the injuries which she has alleged to have suffered was not proved by her before the Court below. The learned trial Court while scrutinizing the statement of D.W.2 concluded that on a comparative reading of the various medical examinations conducted by various doctors attending on her showed that the wife was suffering from a border line personality disorder which had an effect on the attitude of the wife pertaining to using abusive language and entering into physical assault.

87. The learned trial Court while scrutinizing the evidences of D.Ws. 1 and 2 along with documentary evidence has also held that the statement prove that there had been inconsistent stand taken by the wife pertaining to the incidents which has chanced, because the learned trial Court has taken cognizance of the fact that in her cross-examination she has submitted that the plaintiff/husband had not committed any wrong behaviour but rather he loved her.

88. The Court further held that looking to the pleadings and counter pleadings the wife has not specifically denied the incidence of the misbehaviour and attitude which she was often suffering from, which has chanced at Jaipur and Kanpur, further more the Court held that in a cross-examination she has admitted the fact of writing the suicide note, which was not denied but rather she has denied to plead under what facts and circumstances she has written that suicide note which shows that suicide note was written by her thus the Court rightly held that once the incidence of Jaipur and Kanpur are admitted, once the fact of writing the suicide note is admitted. The statement of D.W.2 and D.W. 1 shows that she was suffering from border line personality disorder, once the consistent medical reports shows the attitude of sudden spurt of mental behaviour, the complaints lodged by her to the police station about the incident of 2012, the complaints which the wife has lodged to the society for restraining the husband from selling the property. All these together will amount to be a cruelty and such an act of wife was acrimonious and the husband cannot be forced to spend the life in such a duressed and atrocious circumstances and, thus the Court opined that all these activities including the activity of physical assault and the false allegations levelled by her as she was unable to substantiate as to what was the reason for physical assaults leading to lodging of police complaint. The Court has held that there was cruelty exercised by the wife against the husband and, thus, the learned trial Court concluded that there was a cruelty commissioned by the wife. We find no reasons to agree with the reasons assigned by the Court below, in the impugned judgment.

89. The contention of the wife that she was forcefully taken to the Doctors for getting her medically examined with regards to the ailment is absolutely misinterpreted by the husband because she contended that she was not suffering from any disease. Let it be so, then at least there was no reason for the wife too, to get herself examined from Dr. Pratibha Sharma who too had given a vivid opinion pertaining to the impact and the effect of disease with which the wife was suffering from. The Court held that it is an admitted case of the parties that she has been taken to the physiotherapist on number of occasions, at number of place, all this we feel could not be without any reason behind it, which was tried to be denied by the wife that despite of the fact that she was keeping well still she was forced upon to be taken to the Doctor.

90. The Court held that the evidence proved that she was taken to physiotherapist and according to the witness adduced by the wife herself i.e. D.W.2, it showed that the wife was brought to her for treatment along with her father and on scrutiny of the statement of D.W.2 it was the father of the wife who had informed the Doctor, while consulting her, that all of a sudden the wife starts crying, all of a sudden she goes in depression, all of a sudden she gets angry, and all these incidents were narrated by the wife herself to the Doctor.

91. It is an admitted case and as per the evidence on record and the medial reports which shows that the symptoms which the person shows who is suffering from such disease and which has been also simultaneously admitted by the doctor. Thus the Court rightly held that from all the evidences there is no contradiction pertaining to the ailment and treatment in relation to the wife. Thus the Court concluded that the husband had been able to succeed to prove that the wife has committed cruelty either by misleading and also by distortion of facts about ailment. The Court below held and we too feel that even if it is presumed from the version of wife that she was not suffering from any such mental problem but once she admits the attitude and behaviour which she has committed at Jaipur and Kanpur in itself shows cruelty, as they were the public humiliation committed by wife to husband and his family. When she admits the factum of the writing of suicide note also proves cruelty as it has caused cruelty by fear which has been done with the conscious state of mind and thus the Issue No. 1 has been rightly decided in favour of the husband, holding that he has provided the facts of cruelty as provided under Section 13 of the Hindu Marriage Act.

92. The learned trial Court while deciding Issue No. 2 with regards to the custody of child under Section 26 of the Act, has decided the issue cursorily without considering the respective evidences on record. The husband’s case is that looking to the admitted case that wife was not in a sound state of mind and looking to her aggravated attitude it would not be safe for the child to continue to live with the mother, but still rightly so looking to the tender age of the child where love and affection of the mother is more important for giving better life and care to the son the Court has rightly decided the issue pertaining to the custody by giving it to the wife. Apart from it, the disease with which she was suffering, it cannot be ruled out that it could best be cured by company of child with the mother, taking the child away from the mother, there may be possibility that disease may aggravate further, thus we feel that the custody to child wrongly retained with the wife. Furthermore, the issue pertaining to threat perception for the child, from his mother as advised by the Doctor, it has nowhere come on record that at any point of time ever, such incident has occurred where wife had assaulted her child in an aggravated stage. Thus the reason given by husband in his under Section 26 proceeding, is not acceptable by us.

93. As far as Issue No. 3 is concerned, pertaining to the restitution of conjugal rights, where the wife has claimed that she wants to spend her life with the husband as he has wrongly deserted her, the learned Court below has rightly come to the conclusion that looking to the attitude and the acrimonious behaviour and that too in the circumstances when the wife herself has pleaded that she is not suffering from any mental disorder and then she continues to behave in the manner by threatening the family by committing suicide and by threatening the family by lodging complaints to the police as well as in the society where husband has his flat, by creating scenes on the station and, since, when the learned trial Court while deciding Issue No. 1, has found that the cruelty stands established. In these circumstances forcing the husband to continue with the matrimony would be too atrocious and would not be conducive to permit the spouses to live together, more particularly, when the misunderstanding has gone to such an extent, where each of them are engaging themselves in acts which is not expected from an educated class of family and thus decreeing Section 9 proceedings would not be advisable under the given sets of circumstances and, thus, the learned trial Court has rightly denied the restitution of conjugal rights and, consequently rightly rejected the counter-claim.

94. It has also come on record by evidence that the wife is residing in the flat belonging to the husband and the husband is residing in a tenanted accommodation which too is flat, which too shows that they had been living without any interference into the life of one another and even otherwise,they could not have lived happily looking to the past history of litigation and allegations levelled against one another. Thus, this Court feels that it would not be conducive to disagree with the judgment of the learned trial Court dismissing the counter-claim, by way of a decree for restitution of conjugal rights.

95. Thus, consequently, Appeal No. 80, Vivek Bhatia v. Anju Bhatia, under Section 26 of the Hindu Marriage Act is hereby dismissed. No order as to cost.

96. Appeal No. 82, Anju Bhatia v. Vivek Bhatia, preferred against the decree granted under Section 13 of the Hindu Marriage Act dissolving the marriage is hereby dismissed. No order as to cost.

97. Appeal No. 83 Anju Bhatia v. Vivek Bhatia against the dismissal of counter-claim under Section 9 of the Hindu Marriage Act for restitution of conjugal rights is dismissed. No order as to cost

Ordered accordingly.

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