Delhi District Court
Puneet Kaushik vs Archana Kaushik on 13 February, 2007
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IN THE COURT OF SHRI GURDEEP SINGH
ADDITIONAL DISTRICT JUDGE :DELHI
In re:
HMA No. 67/06
Puneet Kaushik
s/o. Sh L D Kaushik
r/o. S-134 Greater Kailash-I
New Delhi ........Petitioner
Versus
Archana Kaushik
w/o. Sh Puneet Kaushik
d/o. Sh H C Vashisht
r/o. BH-52 Shalimar Bagh
Delhi ........Respondent
PETITION FOR DIVORCE
U/s. 13 (1) (ia) of the HINDU MARRIAGE ACT
JUDGMENT:
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1. This is a petition U/s. 13 (1) (ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as HMA) filed by the petitioner/husband for grant of divorce against wife/respondent. The petition was filed on 30.9.93 and it was amended twice and amended lastly on 18.5.06.
2. The facts as averred in the petition are that the marriage between the parties was solemnised on 16.5.1991 at Delhi according to Hindu Rites and Ceremonies. They lived together at house no S-134 Greater Kailash-I, New Delhi and the marriage was consumated, however, there is no issue out of the wedlock. It was a arranged marriage. It is stated that the respondent being a pampered daughter started behaving abnormally right from the beginning of marriage causing tension, worries and disreputation to the family.
3. It is stated that on 17.5.91 he had disclosed the details of his saving, bank account and FDR etc to the respondent and she started misbehaving with the parents of petitioner. It is 3 stated that the parents of the petitioner was tortured so much that they asked him to make his own arrangement for living though he is the only son and have big house to live in. It is stated that when he suggested respondent to change her behaviour, she threatened not to interfere in her habits and change her or else she will commit suicide.
4. It is further stated that in the month of July '91 when he talked to respondent about completing his CA examination, she started picking up quarrel without any rhyme or reason due to which he could not fair well in the examination held in the month of Nov '91 and he waited for other attempt in the month of May '92. It is stated that during the period from Nov '91 to April '92 there was not much unwanted behaviour from the side of respondent as she was mostly living with her parents during that period and used to visit and stay with him for few days.
5. It is stated that in the month of April '92 she flared up in anger and kicked in his belly when he told her that her father 4 had called up to enquire about respondent's behaviour and he had told him that there was not much positive change.
6. It is stated that in the month of May '92 she again started behaving in objectionable manner and even beat the petitioner and on 13.5.92 she quarreled with him and tried to strangulate herself at night in his presence and he had to report the matter to the police at police station Greater Kailash. It is stated that she put pressure on him to live separately from his parents and he was tortured so much by the respondent that he fell sick due to anxiety, tension and became a psychiatric patient. It is stated that on 20.5.92 respondent filed complaint with police station Shalimar Bagh with copy to police station Greater Kailash against petitioner and his parents. The petitioner filed his reply and the respondent and her parents were called to the police station wherein respondent submitted written undertaking signed in presence of six witnesses withdrawing the said complaint unconditionally. It is stated that since the petitioner and his 5 family member ran threat of being arrested he alongwith respondent shifted to 145-A Zamurdpur, New Delhi in the month of June '92.
7. In the month of Jan '93 again respondent created trouble for him and threatened that this night shall be the last night of your life and he had to leave the house in disgust and when he informed her that he was at S-134, GK-I she reached there crossing over the main gate and started shouting and abusing the parents of petitioner. She thereafter ran inside the house and picked up the kitchen knife and injured her hand and threatened to immolate herself in order to involve the petitioner and his parents in case of burning the bride. He reported the matter to the police at police station GK-I on 12.1.93 and he had to go the Safdarjung Hospital at night of 13.1.93 as his illness was aggravated due to the act of respondent as he was a patient of TB and psychiatric.
8. It is stated that in the first week of Sept '91 they both had 6 had gone to attend a function hosted by his friend and during the discussion when he told respondent that his sister at Surat had also invited them in the autumn break, she flared up and stated that she will stay with her parents only and when the dinner was served she behaved in escentric manner causing humiliation to the petitioner.
9. It is further stated in the month of Aug '91 respondent had filled up the form for examination for the post of TGT teacher and when his mother who herself is a senior PGT teacher offered to deposit the same with the office, she refused and demanded that the petitioner should himself submit the form otherwise she will not appear in the examination.
10. It is further stated that on 16.10.91 respondent prepared the food in the evening and it was found that some pieces of iron scrubber was found inside the food and when he requested respondent to be careful while cooking she flared up and threw the food on the floor.
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11. It is stated during the occasion of Holi in the year 1992, the petitioner alongwith his cousin went to respondent at her parents house and they told her father about the behaviour of respondent during their talk. On this father of respondent asked him to send respondent during the week end to Shalimar Bagh so that he may advise her and thereafter on the next Saturday when he requested respondent to go to Shalimar Bagh she slapped him threatened that in case he complains to her father, she will commit suicide and also put pressure on him to live separately.
12. It is that on 13.5.92 again respondent put pressure on him to live separately and quarreled with him and he reported the matter to the police at police station GK-I and again on 14.5.92 had to approach the police as respondent in the night of 13.5.92 had picked up quarrel with him and threatened to commit suicide and thereafter, he called up father of respondent and he took along the respondent with him.
13. It is stated that in the third week of May '92 there was 8 function in the village of petitioner at Rohtak and he wanted to take along the respondent to the function so that the persons there may not know about the dispute between them and requested respondent to accompany him in the function and also to give assurance that she will not create any scene there. It is that on 19.5.92 she agreed and gave assurance and when he reached her house on 20.5.92 to take her along she refused and the father of respondent pushed him out of the house and the matter was reported to police station Shalimar Bagh that day by him.
14. It is further stated that on 9.6.92 he contacted respondent with intention to advise her and hoping that she would have mend her ways and had long discussion which he had recorded. The said conversation is also part of the petition.
15. It is stated that on 13.1.93 he had sent a telegram to the father of respondent complaining about the behaviour of respondent and he received a letter from father of respondent on 16.1.93 wherein father of respondent has stated that they 9 have advised respondent to behave in proper manner.
16. It is stated that on 15.1.93 respondent taking advantage of joint bank account withdrew an sum of Rs. 15,000/- and again a sum of Rs. 1500/- without his knowledge and it was transpired that a sum of Rs. 15,000/- was put in fixed deposit by respondent in her name.
17. It is stated that in the month of July '93 when they both had gone to watch a movie she suddenly flared up with anger without any rhyme and reason, broke her bangles and torn the shirt of petitioner. She also put blood stains on the shirt of petitioner and threatened to involve him criminal case.
18. On 26.9.93 she left the house after picking quarrel with him and threatened to implicate him in criminal case and he reported the matter to the police station GK-I same day and on next day he went there to hand over the keys of the house to the respondent and found the father of the respondent also there and when he gave the keys of the house she refused to take it.
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19. The latest amendment in the petition was formal in nature and section (ia) was inserted in the prayer which was allowed and the written statement to this amended petition was not filed, however, the written statement which was filed earlier shall be considered as written statement on behalf of respondent.
20. The petition was contested inter alia that the petition is not maintainable as per High Court Rules and also under the HMA. It is stated that the allegations and accusation made by petitioner are false and contradictory. It is stated that he had made amendment in the petition and sought to correct the age of the parties and also sought new para creating new stories which all are false. It is stated that amendment was sought when the respondent had already filed the written statement.
21. On merit the marriage is admitted and it is stated that they were engaged on 27.9.90 and the marriage was fixed for 10.12.90 but it did not take place as the petitioner and his 11 parents approached them for postponing the marriage and requested for the marriage in May '91 as petitioner had to appear in the CA examination, hence the marriage was fixed after the examination. It is stated that the petitioner had not given due love and affection as husband of a newly weeded wife nor the in-law gave such love. It is stated that she was asked to remain away from petitioner so that he may be able to prepare for his examination. It is stated that both the parties were knowing each other much prior to the marriage and since both had given advertisement the matrimonial offer was accepted. It is denied that respondent is a pampered daughter or had behaved abnormally. It is denied that just after one day of the marriage the petitioner had disclosed about his saving and she started misbehaving. It is also denied that respondent ever asked petitioner to make other arrangement for living. It is stated that the petitioner himself and his mother who had disturbed the peaceful matrimonial life.
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22. It is admitted that she is employed as teacher and on 14.5.92 the school being closed due to summer vacation had gone to live with her parents on request made by her father to her father-in-law and it is stated that no incident as alleged on from 12.5.92 to 14.5.92 had ever taken place. It is stated that on 14.5.92 when the respondent was being taken by her father, petitioner looked upset and it appeared that he again failed in the examination. It is stated that on 19.5.92 he came to the house of parents of respondent at about 6.30 AM and requested her to accompany him to the function at Rohtak to which she agreed but she was shocked when petitioner asked her to give written undertaking that she will not commit suicide. It is stated when she refused to do so, he became furious and manhandled her and started abusing which was heard by her father also. It is stated thereafter, he father requested him to leave and asked his father to talk to him. It is further stated that the petitioner after going to his house called her on telephone several time and tried to convince her 13 to give the above written undertaking. It is stated that on 20.5.92 he again came at about 6.30 AM and after entering into to house tried to drag her out and again he was asked to leave the house and thereafter, when they came to know that he had lodged complaint with the police she also lodged the complaint on 20.5.92. It is stated that the petitioner and his parents approached father of respondent to amicably settle and compromise the dispute and as per the compromise she agreed to live with him in separate house. It is stated that the said statement given by both the parties were prepared by the petitioner himself. It is further stated that while petitioner kept her at rent house, he himself remained at GK-I house. It is stated that the petitioner time and again failed in the CA examination and remained upset.
23. It is denied that after 13.1.93 she had reached GK-I house or have crossed over the main or reached for the kitchen knife and injured herself or threatened to implicate them in criminal case. Infact it is stated that after 13.1.93 they both 14 have been living at GK-I and there was no untoward incident between the parties. It is stated that during the summer vacation during May '93 she had went to her parents house and when she came back she was not allowed to stay there and was taken to Jamrudpur house. The incident of Aug '91, Sept '91 and 16.10.91 are denied. It is also denied that she got flared up when he told about the invitation by her sister at Surat. It is stated that the food was always prepared by her mother-in-law assisted by her.
24. It is not denied that at the occasion of Holy in the year 92 she was with her parents but remaining allegations are denied. The incident of function at Rohtak is also denied. It is stated that they had talked on telephone several time, however, it is denied that there was any recorded conversation it was deliberately withheld by him at time of filing the divorce petition.
25. The incident in para 12 (x to xiv) are also denied. It is stated that she had never gone out of the matrimonial house 15 and was through out at Jamrudpur house and when she went to the police on 27.9.93 she found the petitioner also there who was trying to change his report and under these circumstance her father also lodged the report. It is stated that after 27.9.93 she was compelled to live at her parents house.
26. It is admitted that they had joint account and stated that since petitioner had gone to his parents house without telling her taking away all money and papers she had operated the account and put some money in the fixed deposit and took some for her day to day use. It is stated that all her dowry articles are lying in the custody of petitioner at the GK-I house and Jamrudpur house.
27. Replication was filed by petitioner reiterating and reaffirming his previous version.
28. From the pleadings of the parties my Ld. Predecessor vide order dated 16.7.97 framed the following issues:
(i) Whether the petition has been filed in accordance 16 with the Delhi High Court Rules, 1979 and is it not maintainable? OPR
(ii) Whether the respondent has treated the petitioner with cruelty after the solemnization of marriage? OPP
(iii) Whether this court has no jurisdiction to try this suit? OPR
(iv) Relief.
29. In support of his case petitioner examined himself as PW1; PW2 SI Dinesh Kumar from police station Greater Kailash; PW3 Sh Gopi Krishnani from Bank of Baroda; PW4 Sh R K Mehra from the office of petitioner; PW5 Sh Janardhan Sharma is first cousin of petitioner; PW6 Sh P D Sharma is uncle of petitioner; PW7 Smt Savitri Sharma is the mother of petitioner; PW8 Sh I D Kaushik is father of petitioner; PW9 Sh Ram Lal record clerk from Safdarjung hospital; PW10 Dr Rajender Singh from CFSL.
30. On the other hand respondent examined herself as RW1; RW2 Sh H C Vashisth father of respondent; RW3 Sh 17 Prakash Chander Garg who is a colleague of father of respondent.
31. I have heard petitioner in person and counsel for the respondent. The written submissions and set of citations are also filed by them. I have considered the same and have gone through the record.
32. My issuewise findings are as under:
ISSUE NO 1 & 3
33. These issue can be decided by common findings. As regards the issue on maintainability it not pressed for nor argued and as far as the jurisdiction is concerned, it is not disputed that the matrimonial home is in Delhi and therefore, this court has jurisdiction to try case. Issue no 1 and 3 are decided against respondent and in favour of petitioner accordingly.
ISSUE NO 2
34. The petitioner has stated various instances which have caused cruelty to him and they are broadly in the following 18 category (i) the instance from the date of marriage till before May '92 (ii) the instance of May '92 (iii) the instance from June '92 till 26.9.93.
35. Now let us examine whether the instances alleged to have been committed by respondent are proved and if proved whether they constitute cruelty?
36. It is submitted by counsel for the respondent that the initial petition filed by the petitioner does not contain the instances as mentioned in para 12 (i) to (xiv). He further submitted that amendment in the petition was done only when the written statement was filed by respondent and took advantage when he came to know about the defence of respondent. Secondly, it is submitted that the act if any, were condoned. Further, it is submitted that the petitioner has with-held the document regarding his CA examination despite notice issued to him, therefore, adverse inference should be drawn against him.
37. The petitioner has given written argument and thereafter, 19 the rebuttal of written argument giving the evidence in detail and citing the laws. The argument of the petitioner cannot be dealt with as given in the written submission which is the only argument in support.
38. The petitioner has also cited numerous judgments which mostly lays down as to what constitute cruelty. Before proceeding further, let us examine the judgments which are primarily on the point as to what constitutes cruelty.
39. In Shobha Rani V. Madhukar Reddi I(1988) DMC 12 the wife sought dissolution of marriage on the account of cruelty on account of dowry demand and the Hon'ble Supreme Court while discussing as to what constitute cruelty held that it differs from case to case and held that wife is entitled to decree of divorce.
40. In Jayachandra V. Aneel Kaur (2005)2 SCC- 22 the Hon'ble Supreme Court had occasioned to examine the mental cruelty. It held that mental cruelty is to be considered in the light of social status of parties, their education, 20 physical and mental condition, customs and traditions.
41. Naveen Kohli V Neelu Kohli III (2006)SLT 43 is a celebrated judgment of Hon'ble Supreme Court decided by three division bench in which cruelty has been defined.
42. In G V N Kameshwara Rao V. G Jabilli (2002)2 SCC 296 held that after amendment in the HMA 1976 cruelty does not necessarily involve life threatening conduct or a conduct which result in bodily injury or damage to the health or conduct which give rise to a reasonable apprehension of danger to life, limb or health. It has clarified that solitary instance or occasional outburst of anger or rudeness does not amount to cruelty.
43. In V Bhagat V. D Bhagat II (1993) DMC 568 it was held that counter allegations and the allegation made in the cross examination amounts to cruelty. Further, Hon'ble Supreme Court has held that after amendment of Hindu Marriage Laws 1976 the words in the section i.e. "as to cause a reasonable apprehension in the mind of the petitioner that it 21 will be harmful or injurious for the petitioner to live with other party" which would qualify the expression cruelty in section 10 (1) (b) was omitted. It is therefore, not necessary for the parties claiming divorce to rove that the cruel treatment is of such a nature as to cause an apprehension in mind that it will be harmful or injurious for him to live with other party. The change would now mean mental cruelty that a conduct which is inflicted upon other party such mental pain and sufferings as would make it not possible for that party to live with other. In other words, mental cruelty must be of such a nature that the parties cannot reasonable be expected to live together. Further it is not necessary to prove that mental pain to cause injury to the health of petitioner and while arriving at such conclusion regard must be had to the social status, educational level of parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart. What is cruelty in one case may not amount to cruelty in another. The 22 Hon'ble Supreme Court while taking the facts into account that despite the fact that she is aware that the marriage is long dead and over insists to live with him. The obvious conclusion is that she has resolved to live in agony only to make life a misreable hell for the petitioner as well. This type of callous attitude in the context of the facts of the case leaves no manner of doubt that the respondent is bent upon treating the petitioner with mental cruelty.
44. In Vijay Kumar Ramchandra Bhate V. Neela Vijaykumar Bhate III (2003) SLT-227 the Hon'ble Supreme Court held that where there are allegations and counter allegation with regard to the chastity and the husband claims restitution of conjugal rights, the Hon'ble Supreme Court granted divorce and rejected restitution application.
45. In Romesh Chander V. Savitri I (1995) DMC 231 Hon'ble Supreme Court held that taking into consideration that 25 years has lapsed since that they enjoyed company of 23 each other and there were rounds of litigations between them during this period and while exercising the power under Article 142 granted the divorce, however, this was done under special powers of Hon'ble Supreme Court therefore, this does not lay down any principle of law.
46. In Savtri Pandey V. Prem Chandra Pandey (2002)2 SCC-73 the Hon'ble Supreme Court held that the marriage cannot be dissolved only on the averment made by one party as the marriage between them has broken down. It is was further held that ir-retrievable is no ground by itself to dissolve the marriage and held that the appellant was taking advantage of her own wrong, hence is not entitled to the decree of divorce. This is case is not applicable to the facts of the present case.
47. In Durga Prasanna Tripathy V. Arundhati Tripathy II(2005) DMC 4653 -SC the Hon'ble Supreme Court found that in this peculiar case the parties lived together for about seven months and the respondent deserted the matrimonial 24 home on 22.10.99 and never returned. The parties were living separately for almost 14 years. It was held that marriage has become dead wood and the exigency of the situation demands dissolution of such marriage by decree of divorce to put an end to the agony and bitterness.
48. In Pushpavathi @ Lalitha V. Manickasamy II(2001) SLT -759 the Hon'ble Supreme Court held that merely that the parties are not living together for many years cannot be a ground for annulling the marriage and allowed the appellant reversing the order of grant of divorce.
49. In S Hanumantha Rao V. S Ramani I(1999) DMC 628-SC the Hon'ble Supreme Court held that where the mangal-stura was removed on the asking of the husband, the husband cannot take advantage of his own wrong nor the preserving the copies of the letters sent by her to her husband amounts to cruelty. It also held that the representation made to the Women Cell in order to bring reconciliation does not amounts so cruelty and in case the husband and his family 25 member sought anticipatory bail, then the respondent cannot be blamed for the same.
50. Vasantha V. Walmik 2005 (1) CCC -168 (Bombay) is with respect to the expert opinion. It was held that if the report is placed on record and the same was duly proved by examining the witness, the opinion cannot be discarded.
51. In Naval Kishore Somani V. Poonam Somani AIR 1999 AP-1 the Hon'ble Andhra Pradesh High Court held that divorce can be claimed on the grounds arising out of charges levelled in the written statement by wife which amounts to cruelty, however, said right cannot be claimed where the wife has merely failed to prove the charges. The petitioner himself has to prove such allegations made by the wife as false.
52. Manisha Sandeep Gade V. Sandeep Vinayak Gade I(2005) DMC 173 -DB this judgment is also with respect to the allegations made by the wife against respondent which was not proved and such allegation amounts to cruelty. 26
53. In Asha Handa V. Baldev Raj AIR 1985 Delhi -76 it was held that if there is no specific denial to the allegations made by wife on each and every averment, then it must deemed to be admitted by husband. It was further held that while deciding cruelty the intention is not an necessary ingredient.
54. In Siddalingamma & Anr V. Mamtha Shenoy (2001) 8 SCC -561, this is a judgment on the amendment to the pleadings. It was held by Hon'ble Supreme Court that once the amendment to the pleadings are permitted to be incorporated, the correctness of the facts introduced by amendment cannot be doubted solely on the ground that they were not included originally and hence the doctrine of relation it would appear to have been filed as it appears after the amendment.
55. In Udhav Singh V. Madhav Rao Scindia AIR 1976 SC -744 it was held that the pleadings has to be read as 27 whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out-of-the context, in isolation.
56. In Dr. Keshaorao Krishanaji Londhe V. Nisha Londhe AIR 1984 Bombay -413 it was held that cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent.
57. In Praveen Mehta V. Inderjit Mehta II(2002)DMC 205
-SC it was held that conduct of appellant in approaching the police and complaining against her husband and his parents and taking false plea that she conceived and there was mis- carriage causes a sense of mental tension to the respondent and amounts to cruelty.
58. In Jaiprakash Dattatray Patade V. Usha Jaiprakash Patade I(2005) DMC 601 -DB held that there was irretrievable breakdown of marriage as the behaviour of wife made life of the petitioner intolerable and she left her 28 matrimonial home and stayed with his own relative and he was not given properly cooked food. The petitioner had no conjugal relation with respondent and the respondent had not filed the written statement. This judgment is not relevant to the present case as there is conjugal relation between the parties and the respondent has filed the written statement.
59. In Surbhi Aggarwal V. Sanjay Agarwal I (2000) DMC 453 -DB in was held that intention to be cruel is not essential element of cruelty.
60. Dr. N G Dastane V. S Dastane AIR 1975 SC -1534 this case has been discussed by many subsequent judgments of Hon'ble Supreme Court.
61. The law on the subject i.e. Cruelty has been settled by Hon'ble Supreme Court. In a three bench judgment titled as Naveen Kohli V. Neelu Kohli Hon'ble Supreme Court has succinctily summarized the law as to what amounts to cruelty. The judgment was handed down by Hon'ble Mr 29 Justice Dalveer Bhandari. The Hon'ble Supreme Court after going through the law as laid down by Hon'ble Supreme Court and by English court observed in para 52, 67, 68, 69 and 70 as under:
"The word 'cruelty' has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any differences in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegations that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegations that members of the petitioners family are lunatics and that a streak of insanity runs through his entire family is also an act of mental cruelty.
The expression 'cruelty' has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. It it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the inquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, 30 where it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
To constitute cruelty, the conduct complaint of should be grave and weighty so as to come to the conclusion that the petitioner spouse cannot be reasonable expected to live with the other spouse. It must be something more serious than ordinary wear and teat of married life. The conduct taking into consideration the circumstance and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of other party.
The court dealing with the petition for divorce on the 31 ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has too be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trival irritations, quarrels between spouse, which happen in day to day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, the character and social status. A too technical and hyper-sensitive approach would be counter productive to the institution of marriage. The court do not have to deal with ideal husband and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to matrimonial court."
62. In the background of these judgment we will examine 32 various instances. Petitioner has alleged these instances in his petition and deposed on the lines in his evidence. On the other hand respondent has denied these instances. The instance from the date of marriage till May 1992
63. PW1 in his cross-examination, petitioner denied that his marriage was fixed for 10.12.90 and also denied that on 27.9.90 there was function at the house of respondent first and then at their house. He stated that the ring ceremony took place at the house of respondent and the actual engagement took place at their house. He denied that any customary gifts were given to the respondent. He admitted that there is no document on record about his savings as told by the respondent. He stated that he did not succeed in the CA examination but had passed in the intermediate examination held in the month of Nov '88. He stated that he appeared in the CA intermediate examination in the month of Nov '91 and May '92 and he did not appear thereafter and therefore, do not have the record of 33 examination thereafter. He denied the suggestion that he had continuously appeared in the examination and had the documents thereof but did not produce the same deliberately despite notice from the counsel for the respondent. He stated that in the month of June '91 his parents got annoyed and were fed-up with respondent due to her sarcastic remarks about his savings. He stated that after June '91 he lived at the GK-I house till June '92. He denied the suggestion that the respondent never threatened to commit suicide. He denied the suggestion that the respondent was happy and wished that he should qualify the CA or that she was corporative with him for his success in the examination. He denied the suggestion that it is wrong that he could not pass the examination due to interference by his wife. He stated that respondent has filled the form for the post of PGT in the month of Aug '91 in his presence and he deposited the same. He denied that his mother did not offered to deposit the form and that he refused. He further stated that he had no 34 objection for depositing the form. He stated that he could not produce any evidence of Satkar restaurant. His sister at Surat had invited him in Oct '91. He stated that the invitation was received a day earlier by post. He admitted that the cooking in the house was done jointly by his mother and respondent but stated that it was not hard and fast rule. He denied that iron piece was not noticed in the cooked food. He stated that on the occasion of Holi in the month of March '92 respondent had gone to her parental house and had remained there for one or two days. He went to the place of respondent as per custom but did not play Holi and had reached there after lunch to bring her back and stayed there for about 3-4 hours. He denied that he did not tell father of respondent about the dominating attitude of respondent. It is denied that the respondent was not present at her parents place on the occasion of Holi in the year 1992. He also denied that the respondent in the month of March did not slap him or threatened to strangulate herself to commit 35 suicide. He denied the suggestion that the respondent did not demand separate accommodation.
64. PW6 Sh P D Sharma corroborated PW1 that in Mar '92 after Holi he alongwith his younger brother M L Sharma went to Nehru Place and thereafter went to his sister's house at GK-I and they found both the petitioner and respondent there and they stayed there for about 2-3 hours and had lunch there. He further stated that during their talk about welfare of parents of respondent, petitioner told her that her father had called-up on which respondent got enraged slapped him and threatened if petitioner again complains to her father, she will commit suicide and will put petitioner and his parents in trouble and she strangulated her neck with her hands. He further stated that with great difficulty they pacified her and removed her hands from her neck.
65. In his cross examination, he stated that in the month of Mar '92 he was working at Teri Jori Bagh and could not tell the date of Holi in that year. He stated that it was holiday for 36 him that particular day. He stated that they wanted to seek some professional advice from the CA and it was courtsy call to the house of his nephew. He stated that except the petitioner and respondent no other person was present in the house at that time. His parents had gone to market from their office. He stated that at about 3.00 PM his parents reached house in his presence. He inquired about the health of parents of respondent and there was no visible tension between them from 1.00 PM to 3.00 PM. He denied the suggestion that the respondent did not slap in his presence.
66. PW7 Smt. Savitri Sharma is the mother of petitioner. She stated that during the stay of respondent with them, her behaviour towards them was extremely rude full of humiliation and was yielding (yelling) threats to them. In May '91 she started misbehaving on the question of savings of the petitioner. She stated that the respondent tortured them to the extent that they told petitioner to live separately from them and when petitioner told respondent in the month 37 of May '91 to mend her behaviour, she threatened to commit suicide, however stated that it was in the month of July '91. She stated that in the month of Mar '92 she was informed by her brother that respondent had slapped petitioner; threatened to commit suicide and also threatened to implicate petitioner and his parents in his presence.
67. In her cross examination she stated the dispute between the petitioner and respondent for the period from May '91 to July '91 was with respect to his past savings. She stated that on 17.5.91 petitioner had shown his savings to respondent and respondent commented to her by saying that despite both father and mother are working, the earnings of petitioner had been spent. She stated that she does not know the savings of petitioner in the month of May '91 and further stated that petitioner had told her that he has savings of about Rs. 30,000/-, however, she had not seen the passbook. She stated that she and her husband were bearing the expenses of household and whenever the petitioner wished to purchase 38 anything, he used to spend from his own savings. She stated that after the marriage no discussion regarding the savings had ever taken place in her presence between the parties. In June '91 her husband in her presence had told petitioner to shift from the house and she consented for the same by keeping quiet. Thereafter, he was never asked to live separately. She stated that petitioner has not cleared his CA examination and had appeared for the CA examination after his marriage also but could not clear. She denied the suggestion that she had suggested petitioner to live away from respondent in order to prepare for his CA examination. She stated that she does not know whether the CA examination takes place every year in the month of May and December. She stated that respondent stayed with her for one year and during the summer vacation she had gone to her parental house. She left for her parental house on 14.5.92 before the summer vacations had started. She stated that the petitioner was not slapped in her presence in Mar '92 nor 39 they lodged any complaint with the police.
68. PW8 Sh I D Kaushik is father of the petitioner. He also deposed on the same lines and stated that on account of dispute regarding saving of petitioner, he had asked his son to arrange for a separate residence. He stated that in Oct '91 when the parties were living with them, respondent had prepared the food and while eating the food petitioner had noticed a piece of iron in the food and he asked respondent to be careful about it in future, on this respondent became angry and threw the food on the floor and told that she is not in the habit of hearing suggestions. He stated that they felt bad and they did not take meal that night. He further stated that in the month of Mar '92 his brother-in-law had told him about respondent slapping petitioner in his presence and when he confronted respondent, she told that whatever she had done was correct.
69. In his cross examination he stated that had inquired from his son regarding the dispute and the petitioner told him that 40 it was regarding the savings. He denied that during the summer vacations in June '91, respondent had gone to her parents house. He admitted that his wife and respondent used to prepare food in the house. He denied that no iron piece was ever found in the food or that respondent had not thrown the food on the floor. He reiterated in his cross- examination that when he confronted respondent about slapping petitioner, she stated whatever she had done was correct. He stated that when he asked petitioner about it, he kept mum and further stated that except asking them about it he had taken no action.
70. On the other hand respondent had examined herself as RW1 and she deposed on the lines of her written statement and stated that her husband and mother-in-law said some strong words (kaha-suni) and her mother-in-law also complained about her bringing less dowry and she further directed whatever you bring in future, bring it in cash and not items. She further stated that her mother-in-law told her to 41 stay away from petitioner as he was preparing for CA examination to be held in the month of Nov '91. She stated that petitioner has been living separately from her and she has been living there as unmarried. She stated that their relation were normal till Nov '91. She stated that in Jan '92 she felt that he might have failed in the examination as she found petitioner upset and used to remain annoyed with her. She stated that during the festival of Holi in the year 1992 she was at her matrimonial house only and petitioner had never visited her parental house at that time. She stated that she was never told by petitioner or her father that petitioner had complained about her to her father on the day of Holi in the year 1992 or in the month of April '92. She further stated that she does not know if her father had told petitioner to send her to the parental house. She also denied that no such incident ever took place in the month of April '92 at her matrimonial home when the maternal uncle of petitioner alongwith his other brother had visited them nor she served 42 meal to them nor altercation took place nor she slapped petitioner in their presence nor she attempted nor threatened to commit suicide. She stated that during the period from Jan '92 to May '92 her relation with petitioner was normal as they both were living separately in same house. In her further cross examination she denied the suggestion that she started misbehaving from the date of marriage when the petitioner disclosed his savings or that she threatened to commit suicide when she was asked to change her habits. She stated that the date of marriage was changed from 10.12.90 to 16.5.91 on account of his examination in May '91 on the request of parents of petitioner. She stated that she was told by the petitioner himself about his failure in the CA examination held in May '91. She admitted that she had not mentioned in her written statement as to how she got this information. She denied that she was never asked to stay away from the petitioner till his examination are over. She denied the suggestion that she was not tortured for bringing 43 less dowry or that family members of petitioner has misappropriated her dowry. She stated that she lived with her mother-in-law for about one year and whenever she fell ill or had gone somewhere, she used to prepare the food in her absence. She also stated that her sister-in-law used to help her whenever she was in the house. She stated that her sister-in-law lived with her at the matrimonial house during the summer vacations in the year 1991, 1992 and 1993. She stated that her sister-in-law was married prior to her marriage and her matrimonial house is at Surat.
71. RW2 is the father of respondent. He stated that the petitioner had never made any complaint against his daughter. He stated that petitioner had sent a telegram to him in the month of Jan '93 on which he met respondent. He stated that neither the petitioner nor his family members complained about misbehaviour of respondent with them. He stated that he had not enquired from petitioner about the behaviour of respondent on telephone.
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72. In his cross examination, he denied the suggestion that petitioner and his family members made any complaint. He also denied that in the month of Mar '92 petitioner had told him about the misbehaviour of respondent. On specific question put to him that in the month of Mar '92 on the occasion of Holi when petitioner had informed him about the misbehaviour of respondent towards petitioner and his parents, he had asked petitioner to send respondent to him on weekends, he answered saying it is not so in my affidavit. This itself is a evasive reply. He did not remember whether he had inquired from petitioner about the behaviour of respondent in the month of April '92. He denied the suggestion that petitioner had informed him in the month of April '92 that there was no positive change in the behaviour of respondent. He admitted the telegram Ex. PW1/8 dated 13.1.93. He denied the suggestion that respondent stayed with him during the period from Nov '91 to April '92 and again from Oct '92 to Dec '92. He stated that he could not 45 tell when the CA examination are held. He stated that he could not tell whether they are held in the month of May and its result declared in the month of July and again held in the month of November result of which are declared in the month of January next year. He denied the suggestion that it was a simple marriage and or no dowry was given.
73. It should be made clear that the ordinary wear and tear of life does not amounts to cruelty and harassment. As regards the instance of savings, except for the denial and counter allegations regarding demand of dowry and cash on behalf of respondent there is nothing on record. On the other hand petitioner has been corroborated by his father and mother. Further, the father of petitioner had asked petitioner to arrange for a separate accommodation since there was regular dispute amongst the petitioner and respondent is only natural in order to bring peace to the family stood proved as in the cross examination the mother of the petitioner has categorically stated in reply to the court question as to what 46 was the primary dispute that the respondent appears to have been upset on account there being no saving to her satisfaction whereas all the family member were working.
74. The next instance of finding iron piece i.e. scrubber in the cooked food has been corroborated by the father of the petitioner and except for the denial on part of respondent nothing has come on record. Such instance could be safely ignored as it does not appear to be intentional on part of respondent to have put piece of iron in the cooked food. However, respondent getting upset and throwing the food on floor on being told about same can be an instance of worth taking notice of.
75. Further, the instance regarding slap given by respondent to the petitioner in the presence of his maternal uncle has been proved by the maternal uncle himself. It also has been proved that she got flared-up when told by the petitioner that her father wanted to speak to her as he had made complaint regarding her behaviour. This incident is also in a natural 47 sequence of event whereby there was outburst of rage on being told to her regarding her behaviour to her father and thereafter she tried to strangulate herself which is a definite instance which could be brought into four corners of cruelty.
76. As regards the instance regarding Satkar restaurant, no such friend who had allegedly invited has been examined nor there is any other witness to support the same, hence the same is dis-believed.
77. On the other hand the evasive reply of father of the respondent to the suggestion of the complaint having been made by petitioner to him regarding the misbehaviour clearly suggest that there was something amiss for which the petitioner had made the complaint to him. The petitioner keeping mum in front of respondent when his father confronted respondent regarding the incident of slap is also quite natural as in such circumstance, ordinarily the husband would try to down play in order to save himself from humiliation.
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78. As regards other instances which were inserted after amendment is concerned, it is true that these amendment were carried out after the written statement was filed, however, the respondent had opportunity to file rebuttal and also with respect to these allegations it were to be contested in the examination on oath and both the parties had opportunity to lead evidence with respect to their respective averments.
79. Order 6 Rule 17 permits the party to amend the petition at any stage of proceedings but the amendment of such nature cannot be said to have given advantage to other party as it is a statutory provision and acts to the prejudice of none. The instance of May 1992
80. Ld. Counsel for the respondent submitted that firstly respondent did not had any intention to pursue the complaint made by her and infact she was forced to make the complaint when the petitioner himself lodged the complaint with the police station. Secondly, it is submitted that by the 49 compromise statement made by both it is apparent that the cruelty with respect to lodging of dowry complaint has been condoned. Both the parties had withdrawn the complaint against each other. Thirdly, it is submitted that petitioner himself has committed some forgery by keeping the original compromise on her behalf while handing over the photocopy to the respondent and also retaining the original complaint dated 20.5.92 made to the police station. It is further stated that the respondent never wanted to live in separate accommodation and the address was inserted by petitioner himself in both compromise. It is further stated that the said compromise was just signed by respondent as she was always willing to live with petitioner. Ld. Counsel for the respondent further, submitted that the respondent was not warned of her voice being recorded and she had been trapped into it.
81. It is alleged that in the month of April '92 father of respondent enquired about change of behaviour of 50 respondent and he told that there was no positive change and when he disclosed about the talk to the respondent, she became violent. It is stated that in the month of May '92 she humiliated him, threatened to commit suicide and she strangulated herself as he was not meeting her demand of separate house and he had to report the matter to the police at police station Greater Kailash. He thereafter contacted father of respondent and told him to advise her and her father came and without talking to him took her away. Again he reported the matter to the police. Then he deposed regarding the function at the village where he was to attend on 20.5.92 and on 19.5.92 he went to the parental house of respondent and asked respondent to accompany him to the function and he also casually asked to assure him that she would not create any scene there and lateron she gave her consent on telephone. On 20.5.92 he alongwith his cousin brother namely Janardhan went there to pick her but respondent refused to accompany him in the presence of her father and 51 his cousin brother. He further stated that her father pushed him out of the house and he could not attend the function at village. He again reported the matter to police of police station Shalimar Bagh on 20.5.92. On 20.5.92 respondent also filed dowry complaint against him which was brought to the knowledge of investigating officer of police station Greater Kailash on 24.5.92. The respondent sought police assistance on the dowry complaint and he had filed the reply to the same on 25.5.92 and also applied for the anticipatory bail on 28.5.92 the application of which was allowed and he proved the certified copy of order Ex. PW1/1 and 2. He deposed that he contacted respondent over telephone and advised her to attend the court on 10.6.92 and recorded her entire conversation and proved the same Ex. P1. He stated thereafter, respondent approached his father, his maternal uncle Sh P D Sharma and maternal aunt Mrs. Sushila Sharma and wished to withdraw the dowry complaint if he arrange separate house and he in order to give her chance agreed to 52 shift to rented house at 145-A, Jamrudpur. Thereafter, respondent withdrew the dowry complaint and compromise was signed on 24.6.92 at police station Greater Kailash in the presence of six witnesses and he proved the same Ex. PW1/4.
82. He denied the suggestion that respondent did not try to commit suicide and also denied that he remained busy in the examination from 1st to 12th of May for the CA examination. He stated that the CA examination were from 8th to 11th May. He denied the suggestion that on 13.5.92 he received a telephonic call from father of respondent for sending her to him. He admitted that on 14.5.92 father of respondent took her along. He denied the suggestion that the police report made by him are false or were pre-planned. He stated that the function at Rohtak was at the place of his cousin and there was no invitation in writing. His parents were also invited. He stated that he had gone to the parental house of respondent at about 7.00/8.00 AM and stated that he had 53 gone there without informing respondent on 19.5.92 and he remained there for about one hour. On specific question as to what he told on 19.5.92, he stated that respondent has to attend the function and her absence would reflect difference between the two and he asked her to accompany him. And the respondent stated that she would think over it and inform him. He denied the suggestion that respondent agreed there and then to accompany him. He stated that on 20.5.92 he went to the parental house of respondent and found respondent in the homely outway. When he asked her as to why she was not ready, she stated that she would not accompany him. He further stated that before he could say anything else, father of respondent came and assaulted him and dragged him out of the house. He stated in the meanwhile brother of the respondent also came and threatened of dire consequence, if he narrated the incident to anyone. He stated that he had only asked respondent to assure that no scene would be created at Rohtak and denied 54 that he had demanded written undertaking for the same. He denied the suggestion that he had dragged the respondent or insisted her to write the undertaking. He also denied the suggestion that father of respondent had offered him to drop at his fathers place. He stated that Janardhan lives at Sarvodaya Enclave who is son of his phupha. He denied the suggestion that he never wanted to go to Rohtak and also denied that in order to lodge the complaint at police station Shalimar Bagh he created a drama. He denied that respondent did not refuse to accompany him on 20.5.92 or that she only refused to give in writing that she would not create any trouble there. He admitted that the respondent lodged the complaint on 20.5.92 at police station Shalimar Bagh and denied that Ex. PW1/7is his reply to the complaint. He stated that police had not called him on the complaint of respondent as the complaint was with respect to the dowry against him. He had applied for the anticipatory bail and stated that he does not have copy of the same. He denied that 55 he has not placed the same on record. He stated that he was not arrested on the complaint through police. He stated that the respondent did not oppose the bail but she did not appear in the court. He stated that she had opposed through the official of the police station Shalimar Bagh. He denied the suggestion that he had deliberation with respondent till 10.6.92. He stated that his last deliberation with respondent was on 9.6.92. He stated that he was not aware that respondent knew that her conversation was being recorded. He stated the he did not tell that he was recording the deliberation. He admitted that in the original petition the reference of Ex.PW1/3 was not made. He stated that he had telephoned the respondent on 22.6.92 when he made the arrangement for the house as requested by her and requested her to come and live with him. He stated that this request was made only after she withdrew the complaint. The respondent arrived on 24.6.92 and Ex. PW1/4 was written at the police station Greater Kailash. He does not know in 56 whose hand writing the Ex. PW1/4 was written. He denied the suggestion that after 10th June he and his father called up father of respondent on telephone to come to their house to talk about the compromise. He stated that there were three persons from the side of respondent and three from their side. He stated that they went to the police station after they arrived at his house. He admitted that the words 145-A, Jamrudpur, Kailash Colony, New Delhi on the said document is in his hand. He also admitted that the document was not made in the hand of police. He denied that it was prepared at home and then handed over to the police. He stated that Ex. PW1/4 is the copy and is not the original. He stated that respondent is also having the copy of the same. He admitted that on 9.6.92 he had called Archana on telephone in order to ask her to attend the court on 10.6.92. He stated that he had called respondent since he thought that her absence would effect decision of the bail application. He admitted that the police investigation did not come to an 57 end and he was interested that the investigation comes to an end. He denied that on 24.6.92 he had called Archana on the pretext that he was seriously ill and was about to die and that she should visit him. He stated that the document Ex. RX1 and RX2 were written on 24.6.92 and also stated that the original of the same is Ex. PW1/4 also written on 24.6.92. He denied that both the said copies of the document were handed over to the police while the original remained with him. He admitted that the complaint of Archana came to end when the documents were submitted to the police. He also admitted that thereafter respondent lived with him at Jamrudpur.
83. PW2 SI Dinesh Kumar from police Greater Kailash proved the report dated 13.5.92 and 15.5.92 which are Ex. PW2/1 and Ex. PW2/2. He further stated that the complaint dated 15.5.92 was received by them on 14.5.92.
84. In his cross examination he stated that he was posted at the said police station for the last 7-8 months and was not 58 posted there in the year 1991. He stated that he does not know who wrote the report Ex. PW2/1 and PW2/2 and also stated that he does not know whether these report are in the record of police station or not. He also could not say if the same were marked to any person for inquiry.
85. PW5 Janardhan corroborated PW1 and deposed that the petitioner is his first cousin and in the month of Mar '92 he alongwith petitioner was to go to attend a function at Rohtak and they wanted to take respondent with them. He further stated that at about 7.00/7.30 AM when they reached at the house of the respondent, respondent came out of the house and she was still in her nighty and petitioner enquired from her as to why she was not ready. Respondent refused to accompany and in the meantime father of the respondent also came there and he also said that respondent will not go. Thereafter, petitioner said to him that he want to talk to respondent, she being his wife and it will be good if they go together. On this father of respondent told that respondent 59 would not accompany him and he caught hold of arm of petitioner and asked him to leave.
86. In his cross examination he stated that he often used to visit petitioner and had participated in the engagement ceremony of petitioner. He stated that he do not remember the date when they were to go to Rohtak but it was in the month of May and was summer season. He stated that he had not received any card and it was the birthday function of grandson of his mama. He stated that petitioner did not go there and only 20-30 persons had attended the function. He stated that it was the first and last function in his family and he only attended the said function from Delhi. He stated that he did not knew any other person there from Delhi and he have other relatives also in Delhi. He stated that whatever he stated in the examination-in-chief had happened inside the house and not outside. He stated that he had dropped petitioner at ring road and does not know where he went from there. He stated that respondent had not given any 60 reason for not attending the function.
87. PW6 Sh P D Sharma stated that in the second week of June '92 respondent had called him stating that she will withdraw the complaint in case petitioner agree to live in separate house. He thereafter went to his sister's house at GK-I and informed them about the telephone call. He stated that they also have received similar call and he told them to give positive reply and give practical shape. Petitioner stated that he already had rented a house at Jamrudpur and had informed about this to the respondent. He stated that on 24.6.92 he received telephone call from his sister stating that the respondent alongwith her father and some relatives have come and she wanted him to go to GK-I. He stated that respondent had stated that she wanted to see the rented house before withdrawing the complaint. Thereafter, they went to see the house and came back after about half an hour and thereafter they went to the police station and there the respondent wanted petitioner to give in writing which he 61 gave in writing on behalf of petitioner on Ex. PW1/4 and it was signed by respondent. He stated that the original of the said compromise was kept by the police and the photocopies of same were given to the parties.
88. In his cross examination he denied that he had received any telephone call from respondent or her family or that respondent did not knew his telephone number. He stated that he had gone to the house of petitioner on 24.6.92 alone where he found respondent and her father alongwith three other persons. He stated that the petitioner with his two relatives were also present. He stated that there was no talk about reducing the compromise in writing. He stated that the respondent had told the police that she wanted to withdraw the complaint. He stated that he had written the withdrawal on behalf of respondent and he insisted that the petitioner should also withdraw the complaint in writing. He stated that the document Ex. PW6/R1 is written in his hand and the word 'Puneet Kaushik' encircled in red is also in his hand. 62 He also stated that his name and address at point A is also in his hand and he signed at point B. He stated that the writing at point H; the date at point I are in the writing of petitioner. He further stated that since he could not understand the address told by the petitioner to him so he asked him to write the same. He admitted that the document Ex. PW6/R1 was executed by petitioner but denied that it was written at the house of petitioner. He stated that at the police station no talks with regard to compromise took place nor there was talks with the father of respondent. He stated that he was asked by the respondent to reduce the compromise in writing.
89. PW7 Smt. Savtri Sharma deposed that on 14.5.92 respondent went to her parental house in angry mood and on 20.5.92 petitioner had to attend function at Rohtak and due to social reason he wanted respondent to accompany him and therefore, he alongwith his cousin Janardhan went to the parental house of respondent to pick her but he returned after 63 3-4 hours. On enquiry he told that respondent refused to accompany him so he returned. He further told her that his father-in-law had pushed him out. She stated respondent lodged complaint in the third week of May '92 and in the second week of June '92 they received telephonic call from respondent at their neighbours house stating that in case petitioner arrange for separate house for them then she would withdraw her complaint. She further stated that petitioner arranged separate accommodation on rent and respondent withdrew her complaint on 24.6.92
90. In her cross examination she stated that on 14.5.92 when respondent went to her parental house, she was not at home as she had gone to school. She stated that her husband and son were at home at that time. She denied the suggestion that she had sent respondent with her father happily or that she was not annoyed. She stated that they did not received any invitation card for the function on 20.5.92 at Rohtak and stated it was birthday function of grandson of her brother-in- 64 law. She stated that on 20.5.92 telephone was not installed at their house and the invitation was received at their neighbours house. She stated that she does not know if both petitioner and respondent had lodged the complaint with police station Shalimar Bagh on 20.5.92. However, she stated that respondent had lodged dowry complaint against them at police station Greater Kailash. She stated that she does not know if petitioner had given reply to the complaint against him or had moved application for anticipatory bail. She admitted that respondent alongwith her father and 2-3 other persons had come to her house for compromise talks. She denied that petitioner had called them at her instance. She stated she also called three persons from their side over telephone. She stated that the compromise took place on 24.6.92 but she does not know whether the compromise was reduced into writing. She denied that the compromise took place in her presence.
91. PW8 Sh I D Kaushik is father of petitioner. He also 65 corroborated petitioner similarly regarding the function to be attended at Rohtak.
92. In his cross examination he denied the suggestion that no function took place. He admitted that the said function was not attended by them.
93. On the other hand respondent stated that on 14.5.92 her father had come to her matrimonial house and took her along. She further stated that she had left the house with her father but had also attended the school that day. She stated the petitioner had come to her parental house on 19.5.92 at about 6.30 AM and he straightway entered into her room without wishing her parents and asked her to accompany him to attend the function at Rohtak. She stated that she appreciated him that he wanted her to accompany her to the function and she further stated that petitioner told her that he will allow her to accompany him only if she gives in writing that in case she commit suicide, neither petitioner nor his parents would be held responsible. She stated that she was 66 shocked with this statement of petitioner and refused to give any such writing and petitioner got annoyed and left her house. She stated while he was going back her father asked him to send his father to him for talking. She stated thereafter, called her 4-5 times on phone and insisted to give such writing but she refused. She stated that on next day again petitioner visited her and started dragged her stating that she will have to accompany him to Rohtak and give such writing in the meantime her father intervened and asked him to send his father to him. She stated that she was unable to understand the intention of petitioner. She stated further that thereafter, he went to the police station, he father also followed him and came to know that he has lodged the complaint against her. She stated that thereafter, she had no other option but to lodge the complaint against him also at the police station and produced the copy of the same which was duly received by the police. She stated that in the month of June '92 she received 2-3 telephonic call from 67 petitioner and on 9.6.92 he insisted her to attend the court but she refused saying that she did not have the information from the court and he further stated that he had arranged separate house for them but she stated that she does not want to live separately. She stated that she was not aware that her conversation on 9.6.92 was being recorded. She stated that the copy of the conversation given to her is not audible. She stated that after lodging the complaint on 20.5.92 she never pursued the same nor she was called by the police nor she received notice of bail application. She stated that she never told petitioner that she wanted to withdraw the complaint. She stated that she had received the telephonic call from petitioner on 23.6.92 when he told that he was not feeling well and if she wanted to see him alive then she should see him. She stated that on this she alongwith her father and one other person went to her matrimonial house to enquire about his health and she found petitioner fit and fine and her in- laws suggested for compromise. She stated that she and her 68 parents wanted her to go back to her matrimonial house. She stated that on 24.6.92 they reached at her matrimonial house and the maternal uncle of petitioner Sh P D Sharma and two other persons were called on telephone. She stated that certain documents were prepared and her signatures were obtained. She stated that Ex. PW1/4 was not written in her presence and she does not know who had prepared it. She stated that the witnesses had also signed on the said document in her presence but she does not know them and after compromise she started living with petitioner.
94. In her cross examination she admitted that the document Ex. RW1/P19 is written in her hand writing. She stated that she had never stated that there was any other relation between the petitioner and his mother except that of mother and son. She denied that on 14.5.92 she went to her parental house with her father on her own will. She stated that the complaint Ex. RW1/P20 dated 20.5.92 is written by her. She denied the suggestion that she wrongly stated that 69 the petitioner and his parents are dowry seekers and had ill- treated her for dowry.
95. RW2 is father of respondent who deposed that respondent is a teacher in school and on 14.5.92 the school were being closed for summer vacation and he requested father of petitioner to send respondent to his house for summer vacation and he agreed and asked him to come on 14.5.92. He stated that when he went there on 14.5.92 the parents of petitioner did not complained about mis-behaviour of respondent to him. He stated that on 19.5.92 the petitioner came to their house very early and asked respondent to accompany him to Rohtak and respondent agreed. He stated soon thereafter, petitioner asked her to give him written undertaking that she will not commit suicide there. When respondent refused he became furious and mis-handled her and abused her in his presence and he asked petitioner to leave the house. He stated that on 20.5.92 petitioner again came very early and he went directly to respondent and was 70 dragging her. He rescued his daughter and asked petitioner to ask his father to talk to him. He stated that petitioner had come alone to their house on both the dates. He stated that petitioner after leaving their house went towards the direction of police station and he also went there and came to know that he had lodged the complaint and he told the same to respondent and thereafter respondent also lodged the complaint with police station Shalimar Bagh on 20.5.92. He further stated that respondent did not had any intention to lodge the complaint. He stated that in the month of June '92 father of petitioner approached him to amicably settle the matter and petitioner also called respondent to see him at house on 24.6.92 as he was ill. He stated that they had never created any dispute not wanted the dispute to continue. He stated that they were called at the house of the petitioner where the compromise talk took place sitting at the house of the petitioner. He stated that petitioner himself had prepared the writing for both of them on which respondent just signed 71 and it was also signed by witnesses who were also present there. He stated that the compromise had taken place amicably. He further stated that respondent never wanted to live separately but it was petitioner and his parents who wanted them to live separately.
96. In his cross examination he admitted that Ex. PW1/15 was lodged by him.
97. RW3 stated in his affidavit that he after receiving call from the father of respondent, had accompanied him to the house of in-law of respondent. He stated that father of respondent had told him that there was some misunderstanding between his daughter and her husband and they were called for amicable settlement and stated that there was talk of compromise and the misunderstanding was amicably settled. He further stated that the petitioner went to one room with one of his relative and prepared two writings one for himself and other for his wife. He stated that there were three witnesses on behalf of petitioner and three on 72 behalf of respondent. The writings were kept by the petitioner himself. He stated that the respondent was in the matrimonial home and none had gone to the police station. He proved the signatures of petitioner and respondent on the both the documents.
98. In his cross examination he stated that he cannot tell as to how many documents he had signed on 24.6.92 apart from the compromise statement of both the parties as it is about 12 years old matter. He stated that he does not know anything about the police report lodged by respondent dated 20.5.92. He stated that he does not remember the misunderstanding between the parties by word to word, however, stated that mother of respondent had said something about respondent and we made respondent understand. He denied that he had gone to the police station. He denied that he was not the same Parkash Chand who had gone to the house of petitioner that day.
99. There are allegations and counter allegations against each 73 other. In order to understand entire controversy, the documents are necessary to be looked at.
100. Ex. PW1/4 is the compromise by respondent on which she has written that she had field the complaint on 20.5.92 at police station Shalimar Bagh with copy to police station Greater Kailash against husband, mother-in-law and father- in-law in haste and misunderstanding and she withdraw the same as the misunderstanding is cleared and she wants to live in the house no 145-A Jamrudpur. This document is handwritten and original which bears the seal of police of having received it.
101. Ex. PW6/R1 is written by petitioner wherein it is written that he filed the complaint dated 20.5.92 against his father- in-law at police station Shalimar Bagh in haste and misunderstanding and he want to withdraw the same as his wife also has withdrawn her complaint unconditionally. He and his wife want to live together in separate house and the address of house is also written. Both these documents are 74 signed by six witnesses and these documents are not disputed.
102. Ex. PW1/1 is the certified copy of order of anticipatory bail wherein the court directed the investigating officer to produce wife on 10.6.92 till then petitioner be not arrested. There is another order dated 11.6.92 in which the investigating officer reported that no case is registered the the complaint has been forwarded to police station Greater Kailash.
103. Ex. PW2/1 is the complaint dated 13.5.92 made by petitioner to SHO stating that his wife Archana has quarreled with him and threatened to commit suicide in fit of anger and that he may not be held responsible for the same. In the other complaint dated 15.5.92 which was however received on 14.5.92, which is stated to be in continuation of earlier complaint mentioning that his wife quarreled with him and threatened to commit suicide in the night of 13.5.92 and he had called her father and she went with him on 14.5.92. This 75 is to inform the police.
104. Ex. PW1/6 is the reply by petitioner to the SHO to the complaint made by wife stating that his wife threatened to commit suicide. The fact regarding the function at village; the undertaking referred in the complaint against him as Archana had tried to strangulate herself on 12.5.92; and the lodging of complaint with police station Shalimar Bagh by him is also mentioned
105. Ex. RW1/P1 is the complaint dated 20.5.92 made by petitioner to the police station Shalimar Bagh wherein he mentions the function at village Rohtak and states that when he approached them at about 7.00 AM his father-in-law interfered between him and respondent and forcefully pushed him out of the house and respondent did not speak and was a mute spectator to this. This complaint is duly received by the police.
106. Unfortunately, the complaint made by respondent to police station Shalimar Bagh which was forwarded to police 76 station Greater Kailash was neither filed nor the copy was produced by either of the parties but it is not disputed that it was with respect to dowry demand. The compromise document is not disputed but the manner it is done is disputed.
107. The fact that petitioner had gone to the parental house of respondent on 19.5.92 is not disputed not that he had gone there again on 20.5.92. It is also not disputed that some untoward incident took place that day which compelled the petitioner and thereafter respondent to lodge the complaint at police station Shalimar Bagh and the complaint of respondent was lateron forwarded to police station Greater Kailash on which petitioner apprehended that he may be put to trouble and he sought anticipatory bail. Thereafter, both of them withdrew their respective complaint at police station and started living at Jamrudpur. Can it be said therefore, that the acts of cruelty allegedly committed by respondent was condoned by petitioner?
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108. The factum of their being a function at Rohtak is proved by petitioner and it is not disputed by respondent that he had gone to her parental house with request to accompany him to the function. PW Janardhan has corroborated as to what transpired when he had gone to the house of respondent with petitioner and ultimately he had to go alone to attend the function. He also stated that petitioner did not attend the function which fact was corroborated by parents of petitioner. Thereafter, it is also proved on record that respondent had filed the complaint of dowry demand for which the petitioner had to seek anticipatory bail. In between that there is recording of conversation by the petitioner which is proved by the petitioner and the respondent had admitted that on 9.6.92 she had received call and that she had neither gone to the police station or court on 9.6.92. She also stated that the female voice is not her's but stated that it appears to be somewhat of her. She stated that there was any conversation between he and petitioner on 78 9.6.92 or that she stated that he should be happy or she had threatened him to implicate him alongwith his mother and sister in criminal case.
109. PW10 Dr. Rajender Singh is Principal Scientific Officer, CBI, CFSL, New Delhi. He deposed that on 30.4.04 he received two sealed parcels from the court for voice examination and he had examined the questioned cassette Ex. P1 with the specimen cassette Ex. P2 and found that the voice in both were of same person beyond reasonable doubt.
110. In his cross examination he stated that there is conversation between a man and woman. He stated that he could not tell about the male voice as the specimen voice of the male was not given to him. He admitted that the voice of the person can be mimicked, however, stated that the mimicked voice can be easily detected by the scientific examination.
111. It is therefore, proved that the female voice in the conversation is that of respondent. The transcription of the 79 conversation is Ex. PW1/3 and in the conversation she has stated that she has not filed any complaint therefore, there is no question of any bail. Further, in this petitioner is pleading with the respondent to appear in the court and that if she does not appear he may not get the bail but she refused and also threatened that she will get his mother and sister involved in the case. However, the fact remains that the tape recorded conversation has been proved to be that of respondent and she has deliberately denied it being her voice. Even if she was not warned but from the length of the conversation it is natural that it can be read against respondent.
112. As regards the question that these acts has been condoned as both the parties went to the police station and stated that they had lodged the complaint in misunderstanding against each other and they want to withdraw the same and want to live together, I am of the opinion that the acts of the respondent in refusing to accompany petitioner for the function and lodging of report 80 of dowry demand has been condoned.
The incidents after June 1992 when they were living together at rented house
113. Ld. Counsel for the respondent submitted that it was the petitioner himself who took separate house and made respondent live away from his parents as it has already come on record that she had pressurised him to return to his parental house. Further, one would like to give attention to this argument of the counsel as he has stated that the compromise statement on behalf of both the parties were prepared by the petitioner himself on which the respondent was made to put her signatures and that the address on the same were lateron added by the petitioner. This argument is without any merit since the parents of the petitioner would not be in agreeable condition to allow her to live with them after she had lodged the complaint against them moreover, when was threatening that she would strangulate herself and name them.
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114. Petitioner stated that respondent became more aggressive and gave beatings to him; she was not preparing food and he was forced to bring food from dabha; he fell ill and had to take leave from the office as respondent was not taking care and was staying at her parents home. It is further stated that on 12.1.93 respondent quarreled with him and threatened him saying that this will be last night of your life and pushed him out of the house. He reported the matter to the police station Greater Kailash and proved his complaint Ex. PW1/5. It is stated that his health deteriorated and he was taken to the hospital in the night of 13.1.93. He also proved Ex. PW1/6 which is his reply. He stated that from the hospital he went to his parents house and then respondent also came there and started shouting and abusing his parents and she went inside and after picking the kitchen knife injured herself and threatened to immolate herself. Thereafter, he alongwith respondent went back to the rented house same night. He stated that she was neglecting him even when he fell ill and 82 on 13.1.93 he was compelled to report the matter to the police station Greater Kailash and proved the complaint Ex. PW1/7. He stated that he thereafter, sent a telegram to the father of respondent and proved certified copy of telegram Ex. PW1/8. He stated that his health worsen further and he had to go to the hospital and returned to the rented house. He stated that she neglected him and he fell ill and on 13.1.93 he was compelled to lodge the report with police station Greater Kailash and proved the same Ex. PW1/7. He thereafter sent telegram to the father of respondent and proved the certified copy of telegram Ex. PW1/8. He stated that since his health deteriorated he had to go to the hospital. He stated that in response to same father of respondent wrote letter to him and proved the same Ex. PW1/9. He further stated that in the month of Feb '93 he came to know that respondent had withdrawn a sum of Rs. 16,500/- from their joint account in Indian Bank and converted a sum of Rs. 15,000/- into fixed deposit in her name without his consent. 83 He proved the entries with respect to same in the passbook at point A and B respectively. He proved the passbook Ex. PW1/10 and the FD Ex. PW1/11. He stated that thereafter he wrote letter Ex. PW1/12 to the bank signed by him at point A stating that he will not be operating said account. He further stated that during pendancy of the petition he came to know that respondent had again withdrawn a sum of Rs. 22,000/- from their joint account in Bank of Baroda and produced certificate issued by the bank to this effect. He further stated that in the month of Mar '93 respondent started pressurizing him to return to his parental house as she was shirking from the house-hold responsibilities but her past conduct and behaviour towards his parents did not permit him to do so. He stated that he developed sleeplessness and had to consult the doctor in CGHS dispensary. She stated that after coming to know about his martial life, the doctor had advised respondent to visit him but she refused. He stated that again during the summer vacation in May '93 respondent went to 84 her parental house. In the month of July '93 when they were returning after watching movie at Cinema Hall, respondent flared up again on the issue of shifting and in anger broke her bangles, injured her hand, put blood stain on his shirt and torn it. She threatened to complain making him responsible for her injuries. He further stated that on 26.9.93 she again pressurized him to return to his parental house and when she did not get response from him quarreled and threatened to implicate him and his parents and left the home. He stated that he waited for respondent and when she did not return he reported the matter to the police station and proved the same Ex. PW1/ 13. He stated that he had also sent telegram to the father of respondent and proved its certified copy Ex. PW1/14. He stated that his health worsen and he had to go the hospital and produced prescription slip of Safdarjung Hospital on 26.9.93 and had to spent the night at the house of his phupha and on 27.9.93 he went to the police station Greater Kailash to deliver the keys of the 85 rented house to the respondent and respondent came with her father and they wanted to implicate him. He stated that she refused to accept the key and this fact was recorded in the rojnamcha Ex. PW1/15. He stated that he had been living separately from the respondent since 27.9.93 and he had sent legal notice to her to collect her articles.
115. In his cross examination he denied that on 12.1.93 he had gone to his parents house for whole night. He stated that he had returned from there at about 10.00/10.30 PM. He denied that on 13.1.93 he was at his parents house i.e. S-134. He denied that on noticing him there respondent also went there on 13.1.93. He denied that respondent lived with him at his parents house from 13.1.93 till May '93. He denied that he had lodged the complaint on 13.1.93 regarding respondent injuring herself with knife. He stated that he had lodge the complaint on 12.1.93. He admitted that respondent was not aware of the complaint made by him. He denied that the cheque of salary of respondent was being 86 deposited in their joint account or that no pocket expense was given by him to respondent. He also denied that on 14.5.93 her father took her on account of summer vacation. He stated that respondent had gone of her own to her parents house and she returned in July '93 and they stayed together at Jamrudpur house. He denied that he had locked the rented house i.e. 145-A and went to his parents house on 26.9.93. He stated that respondent had left the house in the evening and he though she had gone nearby but when she did not return, he went after locking the house to the hospital. He stated that he did not keep any chit on the door or informed anybody that he had to the hospital. He stated that when she did not return, he though that she might have gone to her parents house. He stated that he had lodged the complaint as complaint of dowry demand was already made by her against him. He stated that he did not return same night after he put the lock on the house. He stated that on 27.9.93 when he had gone to the police station Greater Kailash respondent 87 alongwith her father also reached there simultaneously. He stated that he had gone to the police station to hand over the keys of the house to respondent as she was not having the keys. He stated that he just wanted to bring on record that he had visited the police station that day. He denied that he wanted to change his complaint made on previous day.
116. PW7 corroborated petitioner that in the month of Jan '93 petitioner had come to meet them and respondent followed him and started shouting and abusing them and she ran into the kitchen and injured herself with knife and also threatened to implicate petitioner and them in criminal case.
117. PW9 Sh Ram Lal record clerk from Safdarjung Hospital proved the signatures of doctors on the OPD slips Ex. PW9/A to Ex. PW9/C. In his cross examination he stated that he had no personal knowledge nor these documents were signed by the doctors in his presence. He, however, had identified their signatures.
118. RW1 on the other hand stated that there was no quarrel in 88 the month of Jan '93, however, stated that due to his examination result he was annoyed with her. She further stated that on 16.1.93 petitioner told her at the Jamrudpur house that she has to live with the in-laws at Greater Kailash. She stated that she shifted to Greater Kailash on 15/16.1.93 and she lived there till 14.5.93. On 14.5.93 she had gone to her parents house. She stated during that period till 14.5.93 she had no dispute with petitioner or her in-laws. She stated when she came back in July '93 to Greater Kailash her in-law told her to live at Jamrudpur and petitioner took her there. She stated that in the month of July '93 petitioner had not taken her out for cinema therefore, there was no question of quarrel as alleged. She stated that she does not have any knowledge about the complaint lodged by the petitioner on 12.1.93 and 13.1.93. She stated that she does not know whether petitioner fell sick during the period from 24.6.92 to 31.12.92 as he was going to office daily and he did not disclose the same to her. She stated that she have been living 89 at her parental home since 27.9.93. She stated that on 27.9.93 petitioner came at about 5.00 PM and stated that he does not want to live with her and asked to leave the house and when she was crying in the veranda, he locked the door and left. She stated that she remained there outside the house till morning at about 9/9.30 AM and thereafter went to her parents house. On the observation of the court she stated that the incident of locking the house was on 26.9.93 and she had gone to her parents house on 27.9.93.
119. In answer to the question put to her by her counsel regarding the incident of locking of house on 26.9.93 she stated that after petitioner locked the house, he never came back. She further stated on that day while she was waiting outside the house, her brother came there and stated that they had received a telegram stating that respondent is not at Jamrudpur house. Thereafter, she on the next day went to the police station with her father where she met the petitioner and his father and petitioner tried to handover the keys of the 90 rented house to her but she refused as she did not wanted to live in the rented house alone. She thereafter, lodged the report with the police regarding going with her father in two cloths only and she came to know that petitioner had lodged report with the police on 26.9.93 and also came to know that petitioner had come to the police station on 27.9.93 to make changes in his report lodged on 26.9.93.
120. In her cross examination, she denied that she had wrongly stated that on 26.9.93 petitioner had misbehaved, insulted, humiliated her and turned her out of the matrimonial house after giving beatings and went away after locking the house. She also denied that on 26.9.93 she had quarreled with petitioner on the issue of shifting to his parental house or threatened him to implicate in criminal case and left the matrimonial house of her own. She admitted that on 27.9.93 she had gone to the police station Greater Kailash with her father and found the petitioner also there. She further denied that on 27.9.93 petitioner had 91 offered the keys of the matrimonial house but she refused to accept it. She stated that it never happened. She was confronted about this with her statement dated 23.10.92 where it is so recorded. She also denied that petitioner had offered the goods to her but she refused to accept and stated that she does not know what was recorded in the rojnamcha. Thereafter, the DD No 5-A is shown to respondent from the portion A to A and B to B and stated that it was informed to her by father and are correct. She stated that she does not know about the notice Ex. PW1/16 which was referred by her in her written statement. She however, admitted that she had converted a sum of Rs. 15,000/- into fixed deposit in her name from their joint account. She stated that when she was posted at Amar Colony school her salary was being deposited firstly in the Canara Bank and thereafter it was deposited in their joint account in Indian Bank. She could not tell the branch of Canara Bank. She stated when she was posted at Azadpur School, she started depositing her salary 92 in the nearby bank and did not remember the name of the bank. She admitted her signatures on the application Ex. PW1/2 at point A. She did not remember her salary for the period from May '91 to May '92, however, stated that it was between Rs. 4000-4500/- and again said that it might be between Rs. 2000-2500/-. She does not remember where her salary was being deposited while she was working at Pushp Vihar school and was staying at Grreater Kailash house. She stated that it might be deposited at SBI, Ambedkar Nagar. She admitted that they had a joint account in Bank of Baroda, Greater Kailash branch and she had withdrawn some amount from it in the month of June -July '95. She stated that she does not remember the exact amount withdrawn by her from this account and stated that she had made request for closure of the account.
121. RW2 father of respondent deposed that on 26.9.93 he had received a telegram from petitioner and he sent his son to Jamrudpur where he found the premises locked while 93 respondent was sitting outside. He further stated that both respondent and his son waited there but petitioner did not turn up. On 27.9.93 he also reached there and found his daughter in pitiable condition outside the house which was locked. Thereafter, he alongwith respondent went to the police station Greater Kailash to lodge the report and found petitioner there. He had lodged the complaint with the police there on 27.9.93. He further stated that since then his daughter is living with him.
122. In his cross examination he stated that when he reached at Jamrudpur house he did not find the entrance of the house lock but the room was locked. He stated that the entrance was open as it was in the possession of the landlord. He admitted that the entrance for both the petitioner and landlord were separate. He admitted that on 27.9.93 when he went to Jamrudpur he had gone through the entrance of the landlord and not through the entrance of the petitioner as he had seen his daughter sitting in the veranda of house of landlord. He 94 denied the suggestion that he had wrongly deposed that respondent was sitting outside the locked room of petitioner. He denied the suggestion that he had sent his son to Jamrudpur on 26.9.93. He admitted that he had received the telegram on 26.9.93. He admitted that he had lodged the DD No 5-A dated 27.9.93 Ex. RW1/1. He also admitted that petitioner had offered the keys of the Jamrudpur house that day to the respondent but she refused. He stated that before he received the telegram on 26.9.93 he had already received telephone call from the landlord of house. He however, could not tell when he received the telephone call. He stated that he had gone to the police station after about an half hour after reaching Jamrudpur house.
123. There are inconsistency between the testimony of RW1 and RW2 with respect to the incident dated 27.9.93. Further, respondent has categorically denied that petitioner was admitted at Safdarjung Hospital on 13.1.93. As regards the joint account, respondent stated that only her salary was 95 being deposited there which has been belied by her own version as she could not tell when her salary was being deposited in the said account. As regards the ailment suffered by petitioner, he has proved the CGHS out patient cards Ex. PW9/A dated 27.10.92 and the same is continuing on 30.10.92, 3.11.92, 9.11.92, 13.11.92, 16.11.92, 21.11.92, 26.11.92, 3.12.92. Ex. PW9/B in which it is mentioned that it is follow up case of depression dated 27.10.92 and shows visits on following dates 19.6.93, 17.6.93, 2.7.93, 16.7.93, 30.7.93. Similarly Ex. PW9/C shows illness as anxiety wherein he was referred to psychiatrist on 16.8.93. These medical report reflects that the petitioner was continuously under medication.
124. On the other hand respondent has not only denied knowledge of these rather she stated that the petitioner was hail and hearty and never disclosed such ailment to her is not at all believable particularly when the doctors had advised for her visit also alongwith petitioner. Her version that 96 petitioner was regularly going to office on the face of it is itself false. The police report made by him on 12.1.93 finds that his wife had quarreled with him and thrown him out of the house and the same is in continuation of reconcilation dated 24.6.92 between him and his wife. Again on 13.1.93 he has mentioned in the complaint that he is suffering from TB and depression for the last two months and and she is not making any adjustment and it has resulted in deterioration of his health and he had to go to Safdarjung Hospital. It is stated that he had left his house on 13.1.93 at about 5.30 PM on account of ill health and on the same day he had sent a telegram to his father-in-law stating that she often quarrels with him. Ex. PW1/9 is the letter of father of respondent to the petitioner and his father stating that he has made respondent understand and also has scolded her and asked her to apologize. The petitioner has also lodged a complaint against respondent on 26.9.93 stating that she has left the house and he sent the telegram to his father-in-law. On the 97 same day there is DD lodged on behalf of father of respondent that he is taking his daughter in which it is also mentioned that petitioner has offered the key to his daughter but she refused.
125. From the testimony of the witnesses, the petitioner has therefore, succeeded in proving three instances i.e. the instance dated 12.1.93 & 13.1.93 when she quarreled with him and he left the house for his parents house and on she also reached her matrimonial house and threatened to commit suicide and injuring herself with kitchen knife. That the physical condition of the petitioner had deteriorated to the extent that he was under continuous medication and visited the hospital. That the respondent had left the house of her own and when petitioner offered the keys of the house on the next date at the police station. However, the fact that the respondent had stayed there even after the house was locked could not be proved by the respondent as no independent witness or the brother of the respondent has 98 been examined who had allegedly visited that day. Further, the landlord has not been examined who could say that she was sitting on the veranda of his house after her house was locked.
126. The question arises whether these acts constitute cruelty by itself or whether the earlier cruelty which he had condoned stands revived?
127. It has been proved on record by petitioner that he was suffering from depression and other ailment and these ailments were on account of the behaviour of respondent. Further, petitioner has proved that immediately after the incident of 12.1.93 and 13.1.93 he had to go to the hospital as he was suffering from depression and his health has deteriorated.
128. Although after the amendment of the Marriage Law it is no longer necessary to prove that living with other spouse would be injurious to his health yet in the present case it has been established on record that health of the petitioner had 99 deteriorated and would further deteriorate while living with respondent. The doctrine of condonation of the acts of cruelty is based on forgiving and re-institution. Once a spouse offer the key of the house to other spouse, he wants to reinstate them. However, it cannot be said that any other act which may not be similar to the earlier act yet amounts to cruel act would result in all the past conduct condoned.
129. In the the present case, the petitioner at the time of marriage was belonging to a society where he was having house in one of the posh locality of Delhi and was CA by profession while respondent was employed as teacher in MCD, thereby they had no cause to quarrel on account of paucity of funds. Moreso, when the petitioner is the only son living in that house with his parents. On the other hand threats to commit suicide extended by respondent to the petitioner had made reasonable apprehension in his mind that it is difficult for him to live with the respondent. Thereafter, the threats made by her to implicate him and his family 100 members in criminal case is also established by making such complaint, although nothing serious happened as a result of the same and the petitioner tried to resolve the matter and the matter stood compromised yet the respondent continued with her behaviour which falls within four corners of cruelty. It is not the ordinary wear and tear of life and the conduct of the respondent can be stated to be such which caused not only mental cruelty to the petitioner but also physical cruelty. Further, the trust between the parties has been lost to the extent that when one spouse withdraw amount from the joint account other give instruction to the bank for stopping the operation of the account. These acts constitute cruelty within the meaning of section 13 (1) (ia) of HMA.
130. The parties have been living separately since 27.9.93 and almost 13 years have lapsed since the institution of the divorce petition. The marriage between the parties took place on 16.5.1991 and thereafter, they lived together hardly for two years and four months, therefore, even otherwise the 101 marriage of the parties have become dead and continuation of the proceedings are further cruelty.
131. On the other hand an application U/s. 340 Cr.P.C. is moved on behalf of respondent stating that the witness Janardhan has falsely deposed that he had attended the function and that he did not knew any other person from Delhi. It is further submitted that witness P D Sharma has also deposed falsehood.
132. I have gone through the record carefully.
133. The falsehood allegedly stated in the application when read with whole evidence does not amounts to falsehood. There might be minor contradictions here and there. Moreover, respondent herself has deposed many facts falsely.
134. In the matrimonial cases because of its very nature in which human relations are involved some minor contradictions could appear here and there and some falsehood could also crop-up but the parties cannot be 102 allowed to be hypersensitive and vexed further . Hence, I am of the opinion that no useful purpose would be served in taking any action. Moreover no evidence has been produced regarding falsehood made by the said witnesses, hence the application is dismissed.
135. Accordingly, in view of my above discussion I am of the opinion that respondent had treated the petitioner with cruelty and the petitioner has not condoned the acts of cruelty nor there is any delay in filing the petition or any collusion between the parties.
RELIEF
136. Accordingly, I am of the opinion that the petitioner is not taking the advantage of his own wrongs and is entitled to the decree of divorce. No order as to cost. Decree of divorce be drawn. File be consigned to record room.
ANNOUNCED IN OPEN COURT GURDEEP SINGH
the 13 of February, 2007
th
ADDITIONAL DISTRICT JUDGE
DELHI.