Mrs. Nidhi Kakkar vs Munish Kakkar on 10 February, 2011

[Cites 10, Cited by 1]

Punjab-Haryana High Court

Mrs. Nidhi Kakkar vs Munish Kakkar on 10 February, 2011

Bench: K. Kannan

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                      FAO No.90-M of 2010(O&M)
                                      Date of decision:10.02.2011

Mrs. Nidhi Kakkar                                         ....Appellant


                                versus


Munish Kakkar                                             ....Respondent


CORAM: HON'BLE MR. JUSTICE K. KANNAN
                     ----

Present:    Ms. Nidhi Kakkar, appellant in person.

            Mr. Kanwaljit Singh, Senior Advocate, with Ms. Harpreet
            Kaur, Advocate, for the respondent.
                              ----

1.    Whether reporters of local papers may be allowed to see the
      judgment ?
2.    To be referred to the reporters or not ?
3.    Whether the judgment should be reported in the digest ?
                                ----

K.Kannan, J.

I. Grounds for divorce by husband that found acceptance

1. The appeal is at the instance of the wife against the decree of divorce granted in favour of the husband. The husband had at least 6 reasons to give for justifying his plea for dissolution of marriage: (i) the wife, who was a Canadian citizen had immediate close relatives living abroad, and had after the marriage left for Canada without the consent of the husband; (ii) she had been taking anti-depression drugs and was suffering from some ailments which were not disclosed to him; (iii) she had forced a separate residence from his parents after her return to India and caused mental cruelty to him; (iv) she had caused physical assaults FAO No.90-M of 2010 (O&M) -2- on him on 15.04.2003 that required medical treatment with the doctor;

(v) she had indulged in character assassination of the husband by falsely insinuating that he had extra marital relationship and was particularly proximate to a colleague in office by name Rajni Mahajan; and (vi) she had taken away the articles from the house suggesting that she was no longer interested in leaving with the company of the husband and exhibiting the intention to desert the husband.

2. There were denials to each one of the aspects by the wife and she had a justification or explanation to the grounds urged by the husband. The trial Court, however, rejected the evidence and found the grounds urged by the husband to be fully established and granted a divorce in the manner sought for.

II. The predominant grounds for immediate consideration

3. The appellant, who had the benefit of counsel presented her case in person with vehemence that each one of the vital considerations wrought by the trial Court were deflected away from appropriate legal reasoning and betrayed a lopsided approach without sifting the evidence in the light of the details brought through documents produced at the trial by the wife. Of the allegations, the issue relating to the wife taking anti- depression drugs or that she had taken away the articles from the house or even the suggestion that she had left for Canada without the consent of the husband, even if they were taken as established would not prove any form of cruelty except that they might be taken up with other factors for inference of the general deteriorating relationship between parties. They may not be themselves sufficient to establish any element of FAO No.90-M of 2010 (O&M) -3- cruelty that could justify a dissolution of marriage. Many of the issues for adjudication could be considered in the context of communications brought through emails but the trial Court discarded them entirely on account of the fact that the husband objected to their admissibility. There could be no reluctance to admit evidence that is generated in electronic form in these heydays of advancement of information technology. The giant strides that are taking place in the field of science cannot be lost to the legal system to access through evidence brought in electronic form. The relevant provisions of law are, therefore, examined to provide a theoretical legal basis for admission of records. III. Admissibility of emails - The relevant legal provisions

4. As observed above several communications between parties have taken place through e-mails, when the wife was in Canada and the husband was in India. The text of communications has enormous bearing to test the respective conduct of parties. All the email communications have been marked without being exhibited as evidence since the author of the emails (in this case, the husband) objected through counsel for the exhibition of the records. It must be noticed that email is a generation of record in an electronic form. The relevant sections of Information Technology Act are reproduced here:

2. Definitions

(r) "electronic form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device; FAO No.90-M of 2010 (O&M) -4-

(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;

(v) "information" includes data, message, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche; (ze) "secure system" means computer hardware, software, and procedure that--

(a) are reasonably secure from unauthorized access and misuse;

(b) provide a reasonable level of reliability and correct operation;

(d) adhere to generally accepted security procedures;

5. The Information Technology Act itself provides for legal recognition of such electronic records. The relevant provisions are:

4. Legal recognition of electronic records.--Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is--

(a) rendered or made available in an electronic form; and FAO No.90-M of 2010 (O&M) -5-

(b) accessible so as to be usable for a subsequent reference.

11. Attribution of electronic records.--An electronic record shall be attributed to the originator--

(a) if it was sent by the originator himself;

(b) by a person who had the authority to act on behalf of the originator in respect of that electronic record; or

12. Acknowledgment of receipt.--(1) Where the originator has not stipulated that the acknowledgment of receipt of electronic record be given in a particular form or by a particular method, an acknowledgment may be given by--

(a) any communication by the addressee, automated or otherwise; or

(b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has been received.

(2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an acknowledgment of such electronic record by him, then unless acknowledgment has been so received, the electronic record shall be deemed to have been never sent by the originator.

FAO No.90-M of 2010 (O&M) -6-

(3) Where the originator has not stipulated that the electronic record shall be binding only on receipt of such acknowledgment, and the acknowledgment has not been received by the originator within the time specified or agreed or, if no time has been specified or agreed to within a reasonable time, then, the originator may give notice to the addressee stating that no acknowledgment has been received by him and specifying a reasonable time by which the acknowledgment must be received by him and if no acknowledgment is received within the aforesaid time limit he may after giving notice to the addressee, treat the electronic record as though it has never been sent.

13. Time and place of despatch and receipt of electronic record.--(1) Save as otherwise agreed to between the originator and the addressee, the despatch of an electronic record occurs when it enters a computer resource outside the control of the originator.

(2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:--

(a) if the addressee has designated a computer resource for the purpose of receiving electronic records,--

(i) receipt occurs at the time when the electronic record enters the designated computer resource; FAO No.90-M of 2010 (O&M) -7-

(ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee;

(b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resources of the addressee.

(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.

(4) The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub-section (3).

(5) For the purposes of this section,--

(a) if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business;

(b) if the originator or the addressee does not FAO No.90-M of 2010 (O&M) -8- have a place of business, his usual place of residence shall be deemed to be the place of business;

6. The authenticity of the documents is a different issue. It can be tested with reference to the provisions of the Evidence Act and could be matters for cross examination. If a person produces a text of information generated through computer, it shall be admissible in evidence, provided the proof is tendered in the manner brought through the Evidence Act. To illustrate, the first requisite is the relevance of the text to the facts to be established at the trial. If a basis is made by the person, who tenders the document, he or she must then speak about the fact of its receipt first hand at a computer which was receiving data in the usual course of its working. The authenticity will have disclosed, in the context of emails, by recipient's email id and the sender's id and the relevant information available in the text of mails containing those details. The correctness and the exact reproduction in print out version could be still issues in the cross-examination and the Court will then consider whether the text could have been altered or morphed. There are dangers of fabrication but that shall be no ground for rejection of the whole record only because, it was possible fabricate false evidence. The relevant provisions of the Evidence Act are:

22-A. When oral admission as to contents of electronic FAO No.90-M of 2010 (O&M) -9- records are relevant.--Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question. 65-A. Special provisions as to evidence relating to electronic record.--The contents of electronic records may be proved in accordance with the provisions of Section 65-B. 65-B. Admissibility of electronic records.--(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely--

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities FAO No.90-M of 2010 (O&M) - 10 - regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause

(a) of sub-section (2) was regularly performed by computers, whether--

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession FAO No.90-M of 2010 (O&M) - 11 - over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a FAO No.90-M of 2010 (O&M) - 12 - responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,--

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.--For the purposes of this section any reference FAO No.90-M of 2010 (O&M) - 13 - to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]

7. The Delhi High Court in the case in Dharambir v Central Bureau of Investigation 148 (2008) DLT 289:ILR (2008) Del 842 was answering the issue, inter alia of whether the hard discs on which the intercepted telephone conversations between the parties had been recorded, were 'documents' within the meaning of Section 173 (5) (a) read with Section 207 (v) CrPC. Referring to the relevant provisions of the Indian Evidence Act and the Information Technology Act, which are extracted above, the Court said that "A collective reading of the above definitions shows that an electronic record is not confined to data alone but it also means the record or data generated received or sent in an electronic form. ... The word 'data' therefore includes not only the active memory of the computer, in this case the hard disc, but even the subcutaneous memory.... While there can be no doubt that a hard disc is an electronic device used for storing information, once a blank hard disc is written upon it (and) subject to a change and to that extent it becomes an electronic record. Even if the hard disc is restored to its original position of a blank hard disc by erasing what was recorded on it, it would still retain information which indicates that some text or file in any form was recorded on it at one time and subsequently removed. By use of software programmes it is possible to find out the precise time when such changes occurred in the hard disc. To that extent even a blank hard disc which has once been used in any manner, for any FAO No.90-M of 2010 (O&M) -14- purpose will contain some information and will therefore be an electronic record. This is of course peculiar to electronic devices like hard discs."

8. The same judgment also records "There are two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software programme. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc (italics supplied). Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned HD or a mirror image...Given the wide definition of the words 'document' and 'evidence' in the amended Section 3 the Evidence Act, read with Sections 2 (o) and (t) IT Act, there can be no doubt that an electronic record is a document."

9. In this case, when the party was present in court, I called him to testify to the emails said to have been sent by him. He would admit to have an email id, his access to computers, his wife's email id and his penchant for communication through emails. In the course of a brief examination made on oath, there was but a halting admission in these words, "The writings read like that I have written but I cannot however, say, whether the writing is made by me. I feel I have written FAO No.90-M of 2010 (O&M) -15 - this letter." I am of the view, the witness was not speaking the truth when he was saying that he cannot say whether the whole writing was by him. In fact, the wife, while giving evidence in Chief through affidavit as well as in the written statement reproduced the relevant materials from the emails sent by the husband. The husband has not controverted them that he did not send those emails or suggest to the witness that text referred therein were not written by him. The text of information has a ring of personal touch that only spouses could exchange and they have immediate relevance to the facts to be established. A printed version produced by the wife that contained text of what is relevant for the case is admissible. I have therefore read the whole text of emails produced in court as admissible evidence. If, in a given case, the party denies having sent the email, the procedure must be to produce a certificate in the manner provided in sub section (4) of Section 65B of the Evidence Act reproduced above. That would have meant securing a certificate from the server of what the text contained to authenticate the text of transmission. There could be a danger of some person generating a fake mail by breaking into the email box of another and dispatch a mail to himself with incriminatory content to harm the other. If there is a doubt on such lines, it shall be possible to secure forensic details through the cyber crime branch of the State Police to find out the source of the particular computer, the place of dispatch, etc, with some effort. Fabrication of mail content is possible in conventional mails also, but it is a matter of evidence that could be subjected to cross examination to be tested for authenticity than a reluctance to admit them in evidence. FAO No.90-M of 2010 (O&M) - 16 - IV. Tenor of emails belie case of departure of wife to Canada without husband's consent

10. For the sake of record, I may point to the communication through email that will establish that there is no truth as regards the first visit of the wife to Canada, he had not informed before leaving for Canada. It could never have been true that the wife had left without informing to him and that he was angry. Letters in the e-mails show how much he loved her and was missing her. There is no sense of anger which would have been there if she had left without his knowledge or consent. In the e-mail letter dated 08.07.2001, he had stated as follows:-

".....yaar aaj mainai yai gana suna which make me very emotional because I love you a lot, tum sahi kehti thee ki meri importance mere jane ke baad samjhoge, yaar bahut der mat lagana. Abb gana suno....."

In the e-mail letter dated 09.08.2001, he had stated as follows:-

" Hi nidhi, I am sorry, yaar tum ittni door bethi ho ki jab tumhari yaad aati hai to kabhi-2 chir much jati hai, issi main agar kuch galat bol jaun to pls forgive me as I am your life partner & also part of you. We are made for each other. Yaar I love you a lot & I need you nidhi. I miss you nidhi. Yaar main tumhe bahut prar karta huin, pls mujhe pyar dena. I can't live without you."

I will not, therefore, take them very seriously except in the context of proof of other grounds urged by the husband which, if established, they will be taken as aggravating factors.

FAO No.90-M of 2010 (O&M) - 17 -

11. It cannot be denied that soon after the marriage, the wife had been keen to relocate the husband in Canada for their mutual benefit. It did not however take effect and the forays of foreign visits by the husband did not secure to him the kind of comfort which he had in his employment in India, and he was thereafter interested in coming back to India. The reluctance of the wife to come back and start living in India had surely come with its own package of problems, particularly in her inability to adjust to the environment of the house with the parents of the husband living in the same house. This is a recurrent theme for the modern day couples in an era of transition from joint family living to a desire to set up a nuclear family. It might perhaps take a couple of more generations before it settles down one way or the other. A mature woman might find comfort and strength of living in a large family of elders. But that would require sufficient adjustments of having to live in an environment that carries its old traditions, beliefs and values. This is more a problem for a woman than man, because in a marital living, the woman in India normally moves into a man's family than vice versa. A modern day woman fed into concepts of freedom has to learn to cope with patience to adjust to elders' ways and a person given to acerbic temperament may seek for liberation from being caught in a web of large family relations. There is no one particular virtue of one system over the other. It is a matter of individual perception. Time will say which shall prevail. But I will not take again the issue of a woman nudging her husband to set up a separate home as an instance of cruelty. A man must organize himself in such a way that his own responsibilities towards his FAO No.90-M of 2010 (O&M) - 18 - family of elders are never found wanting. It is like walking on a razor's edge. To know the strength of family support with elders and surrender some individuality and allowing oneself to be guided in the immediate presence of elders shall be the first endeavour; at the same time, it shall be the duty of a man to allow sufficient freedom for a woman to get adjusted in a new environment. This situation could be crucial when a woman has her own concepts of freedom through her education and through exposure to a different living style oversees. This discourse becomes necessary only to stave off from a whole wealth of materials that both parties relied on to show as to how frequent differences erupted in their inability to choose between India and Canada and in their mal- adjustments to living with elders in the house.

V. Matrimonial infidelity whether attributed to husband, proof of

12. A reckless allegation of matrimonial fidelity of one spouse against another could be truly an instance of cruelty, if it is established. It must again be seen in the context of modern day living where any one spouse has friends from both sexes, particularly in an office environment and if jealousy persists, it should be gently explained without immediately taking as an affront and seeking for divorce. My attempt will, therefore, be to first see if there exists allegations of matrimonial infidelity against the husband by the wife and whether it was so much of a charge by the wife or some doubts which could have been quelled easily by the husband without any further recrimination.

13. The relevant contention in the petition was that the wife repeatedly used to tell the husband in the presence of his parents that he FAO No.90-M of 2010 (O&M) - 19 - was keeping another woman and it was possible that he had children through that woman. These utterances had, according to the petitioner, brought indignation in the eyes of his parents. He would state in the petition that the wife used to humiliate the petitioner by saying that he must be having intimate relations with another girl working in the office and she had been giving telephone calls of the petitioner to enquire as to whether he was in the office or has gone out with some woman. These calls made to the petitioner at the office lowered his esteem in the eyes of his colleagues. To these allegations, the wife would state in her written statement that the petitioner had openly admitted in writing to her that he was entangled and was having acquaintance with a lady by name Rajni Mahajan (later known as Rajni Pathania). This was a manner of statement by her that the petitioner was attempting to take advantage of his wrong. In the cross-examination of the petitioner on his statement against the wife that she was imputing illicit relationship with his office colleague. The petitioner had the following to state:-

".....Rajni had acquaintance with me. She was not my class mate or professional mate. I met her at Guru Nanak Dev University at Amritsar. She was studying there in Economics Department in the year 1997-98. It is incorrect that Rajni used to come to my residence after my marriage at Jalandhar. It is incorrect that I had ever resided at her residence in the absence of the respondent. It is correct that Jiwan Jyoti and Sandeep Kaur were my class mates. They came to my house, but I do not remember whether they came FAO No.90-M of 2010 (O&M) - 20 - before or after my marriage. It is correct that I was earlier engaged with Rochi Mohindroo prior to my marriage with the respondent. I do not remember the date when I was engaged with Rochi Mohindero. The termination of relationship with Rochi Mohinderoo was reduced into writing. I do not remember whether the photo copy on record is the same or not............... The termination of my relation with Rochi Mohinderoo was when we came to know that she had some relations with some other person. She had an affair with some person......"

Elsewhere in the course of cross-examination, the petitioner had stated:-

"It is incorrect to suggest that in my meeting with Nidhi in August, 2008, I pressurized the respondent to divorce me by saying that I love some other girl and want to marry her............... In 1999, I was engaged to Ruchi Mohinderoo and engagement ceremony consisted of exchanging of rings, but subsequently, the engagement was broken down when I came to know that she was having some affair with some boy. I do not remember that any other ceremony having been performed with Ruchi Mohinderoo, other than Roka ceremony. It is incorrect to suggest that I have concealed the fact of my previous engagement when I got engaged to the respondent. It is incorrect to suggest that I had told the respondent that girls are meant for being "use and throw FAO No.90-M of 2010 (O&M) - 21 - policy" and that I could not stay in relation with one girl......."

In the course of trial, it is important to know what the respondent herself has stated in the cross-examination:-

"Q. When you started suspecting that the petitioner is having affairs with some other lady?

Ans: I did not suspect the affair of a lady with the petitioner but the petitioner himself told me at the time of honeymoon that he was in love with some other girl, whose name he disclosed afterwards as Rajni Mahajan, now as Rajni Pathania.

Q: Have you ever met that Rajni?

Ans: I met Rajni when my husband had not told the name of his beloved Rajni and he later on disclosed her name. Q: Do you know that said Rajni was married even before your marriage with the petitioner?

Ans: I did not know earlier i.e. before my marriage that Rajni was married prior to my marriage with petitioner, but I came to know of this fact at the time of my marriage. Q: Whether Rajni and her husband attended your marriage with the petitioner?

Ans: It is correct and I was so told by the petitioner that they were his friends."

14. We have to grapple with a situation of a man's orientation of how a past affair for a woman with a man could be perceived so FAO No.90-M of 2010 (O&M) - 22 - seriously to break an engagement but a man's proximity to another woman or such perception held by a wife, ought not to be a reason for her to make even enquiries about a man's past affairs. I do not see either in the cross-examination of the petitioner or in the answers elicited from the wife in the cross-examination, that there were any serious imputations. Being fair to both parties, they did not bury this uncomfortable topic from their personal lives soon after marriage. They have discussed it threadbare, as adults would do. The important point was that this never came in between them during their subsequent of issues of differences. In the chief examination given through an affidavit of the wife, the following was stated:-

".....The petitioner was having his affair with the lady named Rajni Mahajan now as Rajni Pathania as per disclosure of the petition to me and they continued and I kept on tolerating with the hope that my husband will change slowly and slowly and will leave her but all my efforts proved to be futile and all in vain. The petitioner used to torture me due to her also which is evident from the letters and e-mails written to me by him when I was in Canada. .........."

It would, therefore, become relevant to examine what the exchanges were in the e-mails and what the husband had to say:-

"You are eager to know about Rajni, I met her in 1997, and I have found many things in her to be eligible for my friend circle. She was reliable & intelligent enough to handle me FAO No.90-M of 2010 (O&M) - 23 - at the time of crisis. But she was not of that kind of girl to whom I could marry. She doesn't fit in my frame of my marriage girl."

It was not as if the respondent was making an issue with every one of his girl friends. She had the following to say about his association with two other persons namely, Sandeep Kaur and Jeevan Jyoti:-

"......Even the petitioner had his friends named Sandeep Kaur and Jeevan Jyoti. They were decent but Rajni was not . It was admitted by the petitioner later that he was in love with Rajni. I never had any problem with them (Sandeep Kaur & Jeevan Jyoti) and even they used to come to our home. The letter written by the petitioner was just to convince me that she was just a friend now nothing else but the situation was otherwise........"

The husband had been truly hurt. He had made an attempt to make a clean breast of himself and had written thus:-

"How are you, I am fine here. Yaar tumhain aissa kion lagta hai kee main tumhara nahin. Tum ye nahin jaanti ho ki main kitna hurt hotan huin jub tum merai pe ilzam lagati ho aur jo main kehta huin usko tum jhoot kah deti ho. Kai baar maira dil main aata hai ki agar main kuch bhee galat nahin karta to tum mujhai itna dant-ti ho agar merai se kuch galti ho jai to--------------

Mujhai malum tha ki tum ye khabar sun kai, kee rajni 2- year kai lia jaa rahi hai bahut kush hogi ki chalo mera patti FAO No.90-M of 2010 (O&M) - 24- rajni ka peecha to chorai ga. Pur yaar main ye chahta huin ki hamara vishwas itna ho ki hum kabhi bhee aisa na sochain ki hamara partner hamain dhokha de raha hai, ye subb hum pe depend kurta hai, agar aaj mujhai bhagwan bhee aa kai ye kahai ki nidhi tumhai dokha de rahi hai to main usai bhagwan man-na chor doon......"

15. I have gone through all the e-mails. These are intimate letters found expressing enormous love to his wife in the period of November 2001 and February 2002 that was even after the wife was asked him about his association with Rajni and his explanations. It is an adult response to how persons patch up and move on in their lives. Even if a wife had doubts about the propriety of a particular relationship with another woman when he had explained and when he had expressed his love in several communications, the first communication cannot be taken again as constituting cruelty. The explanation by the wife during the evidence must be, therefore, taken only in the context that she was not making any allegation of matrimonial infidelity of the petitioner with Rajni, but she knew about the girl only from the husband's own disclosures. I will not see in all these communications as bordering on vulgarity or casting a needless insinuation against the husband. The parties had moved on beyond some mutual suspicions. As a matter of fact, it was in evidence and suggested by the wife to the husband that the petitioner's uncle and parents had suspected that she was having somebody in Canada and she was also having some children through other person. Though allegations of unchastity are very serious and they FAO No.90-M of 2010 (O&M) - 25 - are incompatible with a harmonious family living, grave suggestion of one party making against the other was perhaps at the height of their inflamed passions and ought not to be taken as expressions of denouement for bringing down a marriage. I do not find any of these allegations as having been made or stated to wreck a marriage. The husband had himself through several communications expressed his love for his wife and had not brought up the issue of the wife's past allegation of misconduct with Rajni as sullying their future relationship when they were living together on their own volition or at the suggestion of this Court on 16.04.2006 after an application for anticipatory bail filed by the husband was dismissed by the High Court.

16. The learned senior counsel appearing for the husband had relied on decision to the effect that the allegations of misconduct of having illicit relations with another amounted to cruelty. This Court has held in Jasbir Kaur Versus Kuljit Singh-2010(1) RCR (Civil) 295, that levelling of false allegation against the husband that he was impotent or making accusations and character assassinations in the written statement and during the cross-examination of matrimonial infidelity would constitute cruelty. In this case, I do not believe that the wife has transgressed her limits. If she had a doubt about her husband, the husband came clean on his own about the proximity of his relations with the said woman and was making a tryst with his wife for beginning a new and happy life.

VI. Allegations of physical assault

17. Any act of physical cruelty by one spouse against another FAO No.90-M of 2010 (O&M) - 26 - can be truly hurtful. More so, in cultured refined surroundings, even the raising of voice or raising of hand even without coming to real blows could be very hurtful and would amount to cruelty. It all depends on how the parties actually behaved and whether the allegations of physical cruelty had been established. The wife was supposed to have assaulted the husband on 15.04.2003 when they resumed a joint living at intercession of the Court in a petition in anticipatory bail. The MLR (Ex.P4) produced, shows the following injuries on the person of the husband:-

"Injury No.1: Multiple brown abrasions of scab formation of various shape and size on the anterior aspect of right forearm.

Injury No.2: Brown abrasion .5cm x .5cm on the dorsal aspect of left forearm in its upper 1/3rd. Injury No.3: 3 abrasions on the dorsum of hand of size .5 cm x .25 cm and scab formation.

Injury No.4: Linear abrasion 5 cm x .5 cm & scab formation, anterior aspect of lower 1/3rd of right leg. Injury No.5: Abrasion (brownise) 1.5 cm x .25 cm anterolateral aspect of left leg below the knee."

18. The doctor had certified that the nature of injuries were simple and the probable that the injuries could have been caused 3-4 days before and the kind of weapon that could have been used could be a blunt weapon. It is an admitted fact that no complaint had been registered and it is not possible for me to accept the suggestion that these injuries FAO No.90-M of 2010 (O&M) - 27 - had been caused only by some beating given by the wife against the husband. The wife had similar allegations against the husband. She had also filed documentary evidence as regards the injuries sustained by her. The relevant oral testimony and the documentary evidence are:

"........The petitioner and his family had been very cruel to me. They had been saying that, at the wedding of Marble Madan (Menu), who was residing opposite to the house of the petitioner in house No.105, Phase II, Urban Estate, Jalandhar her parents has given 7(seven) lakhs in cash in dowry and further tortured me to bring 7(seven) lakhs from my parents. The petitioner's brother Mr. Rajesh Kakkar bought new car Accent in the month of Oct. 2002 and I was beaten by the petitioner and his family to arrange for cash in September before Rajesh Kakkar bought new car. I could not fulfill the said demand of them as I didn't want to disturb my parents. After Rajesh Kakkar bought new car, the petitioner and his parents started beating me making demand of car for petitioner. The petitioner and his family beaten and pressurized me to make all my accounts in the banks joint with the petitioner. I was beaten by the petitioner on 21/09/2002 and he hit on my chest due to which I was taken to Dr. Rakesh Sabharwal on 21/09/2002, 23/09/2002, 02/10/2002 who suggested for X-rays of chest and after it found that there was swelling near heart, the photocopies of which are Ex.Rx38, the x-ray was with FAO No.90-M of 2010 (O&M) - 28 - Manish. Before this also due the mental tortures by my in- laws I became sick and was prescribed medicine by Dr. Sethi (Jalandhar), the prescription slip dated 09/09/2002 is ExRx 37........"

If I should admit the document filed by the husband as establishing physical assault, I will have to accord the same weight to the documents and evidence brought by her. I will however discard both this evidence as unsubstantiated.

VII. Alleged expression of intention of wife to separate

19. It is also suggested by the husband that the wife had taken away all the articles with an intent to bring to end the matrimonial relations. This would be relevant only in a case where there is an act of desertion and the period of desertion is long enough to sustain that as a ground for divorce. The petition had been filed on 17.05.2003 and there is evidence that till about few days prior to the institution of the petition, they had been living together and particularly between the period from 15.04.2003 to 29.04.2003 when she had left for Canada. The petition itself appears to have been filed during the time when she was away from India. Even the act of removal of goods from the house ought not to be taken, therefore, as affording a ground to the husband when the case must be examined only from the standpoint of whether the particular acts could be termed as an act of cruelty and the collective incidents brought about instances of cruelty.

VIII. Scheme of Hindu Marriage Act

20. Dissolution of marriage is on theory of fault. The fault shall FAO No.90-M of 2010 (O&M) - 29 - not be on the spouse who is seeking for the relief and the Court shall endeavour to encourage parties to end differences. Dissolving marriage is not the only duty of court, though a marriage could be dissolved only through court decree. Even a divorce by mutual consent is to be read subject to the other provisions of the Hindu Marriage Act. Dr.Virender Kumar states in his 'notes and comments' published in the Journal of Indian Law Institute (Vol 52:2 (2010) Page 267), " A close reading of the provisions of section 13B of the Act of 1955, shows that divorce decree by mutual consent is not really a divorce decree by mere consent of the parties. In effect, it is with the consent of the Court. It becomes operational "with effect from the date of the decree" granted by the court and not from the date of the filing of the petition "by both the parties to a marriage together.".. To this extent, the expression 'divorce by mutual consent' seems to be a misnomer." I am not dealing with the case under section 13B but I am citing the above passage to show that a way forward to a matrimonial discord is not always dissolution of marriage. The court has a duty to find reasonable possibilities for saving the marriage, even when the parties mutually want to end the marriage. The author quotes the judgment of the Supreme Court in Jagraj Singh v Birpal Kaur AIR 2007 SC 2083 and culls out the observation of the Supreme Court thus: that "conjugal rights are not merely creature of statute but inherent in the very institution of marriage;" the matrimonial disputes should not be allowed to be driven to a "bitter legal finish;"

"every possible effort must be made so as to restore the conjugal home and bring back harmony between the husband and wife;" and the Court FAO No.90-M of 2010 (O&M) - 30 - must endeavour by directly involving the parties in such a manner so that "possible irritations and misapprehensions should not be allowed to vitiate the (conjugal) atmosphere." Hence, the approach of a court of law in matrimonial matters should be "much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire." It is with this objective that the court must make attempt to bring about reconciliation "irrespective of the stage" of the case under section 23(2). The court "should not give up the effort of reconciliation merely on the ground that there is no chance for reconciliation," or one party or the other says that there is no possibility of living together... The apex court did recognize the fact that living together was highly "personal to the parties." Nevertheless, in its attempt to rehabilitate the couple, the court was obliged to determine the reasonability of their not reconciling, and this could not be done without having first hand interaction with the couple concerned." On my part, I will hold that if the divorce is sought on theory of fault, the relief will avail to a person not merely on proof of fault by the respondent, but that petitioner must have earned it by his unsullied conduct.

IX. Conclusion

21. I do not find the cruelty could be taken as established under such circumstances. In the matrimonial discord that has come about, both parties have had their equal roles. I cannot assign to a wife a larger role and find the conduct of the husband blemishless to afford to him the relief of divorce, when the other spouse does not want the same. There are theories of irretrievable break down of marriage. But I will not FAO No.90-M of 2010 (O&M) - 31 - broach the issue, since they do not form part of statutory law and the Supreme Court itself has said that such a ground does not exist for any court other than the Supreme Court to examine. I notice from the other documents which had been filed and the attempts made during the course of trial and before the trial, for both the parties to come together; they fought and lived together before and after the petition. At the time of hearing of the arguments, there was a definite persistence by the wife that she was prepared to go and live with him; with equal vehemence, the husband was contending that it was impossible for him to live with her. Courts become relevant in many a situation in matrimonial proceedings in these days of heavy institutions and pendency only to separate the parties through decrees of divorce. Unfortunately, Courts allow themselves with very little time left to engage in meaningful dialogue with parties and help the parties to find solutions. If solutions must come, the parties must bring them themselves or so they seem. I have seen through the records and I find that the court has put through the parties several formulations including reference to mediation. I have no prescription for harmony for them; they have to work together. I can only say I have not found adequate reasons to dissolve the marriage. If differences exist, it is for the parties as mature adults to end them, backed with the Court's observation that circumstances are not strong enough to separate them judicially. I only hope that the parties will realize the Court's duty ends where their own positive vibes must take over. I depart from the case with exhortation to the parties that they explore all strategies for harmonious living. I declare that there are no justified FAO No.90-M of 2010 (O&M) - 32 - grounds for divorce and the decree of dissolution of marriage granted by the trial Court is erroneous. The decree is set aside and the appeal is allowed. The wife will continue to draw her maintenance at the rate already stipulated by this Court till they live together or till an alternative formulation emerges by the consent of parties or by order or decree of a Court.

(K.KANNAN) JUDGE 10.02.2011 sanjeev

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