Delhi District Court
Sunil Kumar vs Asha on 30 April, 2007
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IN THE COURT OF SHRI GURDEEP SINGH
ADDITIONAL DISTRICT JUDGE :DELHI
Petition No. : 59/06
Date of filing of the petition : 7.12.98
Date of assignment to this court : 15.11.06
Date of Award : 30.4.2007
In re:
Sunil Kumar
s/o. Sh Parkash Ram
r/o. RZ-345, A-2
Raj Nagar, Pocket II
Palam Colony
New Delhi. ........Petitioner
Versus
Asha
w/o. Sh Sunil Kumar
d/o. Sh Sarup Chand
r/o. B-11 Madipur Colony
New Delhi. ........Respondent
PETITION FOR DIVORCE
U/s. 13 (1) (ia) of the HINDU MARRIAGE ACT
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JUDGMENT:
1. This is a petition U/s. 13 (1) (ia) of the Hindu Marriage Act, 1955 filed by the petitioner/husband against respondent/wife.
2. The facts as averred in the petition are that the marriage between the parties was solemnised on 24.11.97 according to Hindu Rites and Ceremonies at Delhi. The marriage was consumated on 27.11.97. It is stated that the respondent left the matrimonial home on 5.6.98 and has been since living with her parents. It is further stated that she has been going to her parents house prior to 5.6.98 also and was staying with her parents. It is stated that the petitioner is the only son of his parents and is residing with his parents. It is stated that his five sisters elder to him are married and are living with their husband. His two un- married sisters are living with him and his parents. The 3 father of the petitioner is a retired government officer and his mother is old pious religious devoted lady. It is stated that the respondent is a lady of stub born nature who did not show respect to the parents and sister of petitioner. She demanded the petitioner to live separately but the petitioner refused. It is stated that petitioner is employed in a private concern and she used to insist the petitioner to give the entire salary to her and not to his parents. It is stated that the respondent left the matrimonial home on the pretext of visiting her parents. It is stated that the respondent did not attend the petitioner when he fell sick and would leave for her parents house on pretext of visiting them. It is further stated that even the parents of respondent instigated her due to which she showed disregard towards the petitioner and his parents. It is stated the respondent stayed at her parents house from 4.12.97 to 21.12.97 after which she was brought back by petitioner. It is stated that on 17.12.97 while the respondent was at her parents house she declared 4 about her pregnancy and got her pregnancy test done from Maharaja Agrasen Hospital on 18.12.97 which gave positive test for pregnancy. It is stated that on 20.12.97 the petitioner and his parents were informed by the respondent and her mother over telephone about the pregnancy and expressed their desire for going for an abortion. It is stated that on hearing about this they had questioned as to how the respondent came to know about confirmed pregnancy within 20 days of the marriage. It is also stated that they could not explain about their desire for abortion, if the pregnancy was from the wedlock. Moreso when the respondent knew that the petitioner and his parents wanted a baby from the wedlock. It is stated that thereafter, when the respondent returned to the matrimonial home the petitioner got her medically examined from a lady doctor Dr. Mrs Satish Bhalla on 25.12.97 wherein the date of LMP (last mensural period) was mentioned as 14.11.97 and the date of EDD (expected date of delivery) as 21.8.98. It is stated that the 5 petitioner after the marriage came to know about respondent that she was not a homely lady but used to roam around. It is further stated that respondent used to get telephone calls at the matrimonial home from persons unknown to the petitioner and on 1.1.98 a women caller informed that the respondent was pregnant from the person with whom she was having relation prior to marriage. It is further stated that again on 20.1.98 a lady called up at the petitioner's house and inquired about the health of respondent and when she was asked as to who as was, she replied that respondent was pregnant from her son and it raised suspicion on the character of the respondent. When the respondent was questioned about this she quarreled with petitioner and his parents and left for her parents house on 21.1.98 and came back with her mother and brother Jagdish who quarreled with the petitioner and his parents and warned of dire consequences. It is further stated that the petitioner again got the respondent medically examined on 10.2.98 from 6 Sadhu Vaswani Mission Medical Center wherein the LMP was mentioned as 12.11.97 and EDD as 20.8.98. It is further stated that according to this prescription the pregnancy took place in Dec '97. It is stated that the respondent went with her parents on 15.2.98 and stayed with them till 14.3.98. Thereafter, the respondent got herself medically examined on 19.2.98 at Maharaja Agrasen Hospital which mentions the LMP as 12.11.97 and EDD as 19.8.98. It is further stated that on 28.2.98 when petitioner went to his in-law's house he was badly treated by his father-in-law and mother-in-law who also abused him at the instigation of the respondent. It is stated that on 15.3.98 the respondent came back accompanied with her parents, brothers, her bhabis and some anti social elements and they abused him, his parents and his sisters and threatened to kill if anybody raised suspicion regarding the character of respondent or interfered with the way of life of respondent. It is further stated that the respondent further went for 7 medical examination on 29.3.98 at Pt. Girdhari Lal Memorial Sharma Nursing Home where the LMP is mentioned as 12.11.97 and EDD is mentioned as 19.8.98 and the petitioner came to believe that the pregnancy of the respondent was from the wedlock and the delivery would be after normal period of 40 weeks or 280 days.
3. It is further stated that although the petitioner and his parents were treated with cruel behaviour by the respondent, but they eagerly waited for the child and hoped that the respondent would correct her behaviour. It is stated that the respondent did not mend her behaviour and her conduct continued to be of way-ward and she would receive calls and visits from persons unknown to the petitioner. It is stated that respondent would assert that the callers were known to her and she would not stop talking or seeing them. She also stated that the she was married to petitioner against her wishes. It is stated that such behaviour of the respondent was a continuous nuisance and a source of 8 annoyance, irritation and mental torture to the petitioner. It is stated that the petitioner was not aware about the life of the respondent before marriage.
4. It is further stated that the respondent was in the habit of showing disregard to the petitioner and his parents; getting up late in morning; not preparing the food; not serving the food to the parents of petitioner. It is stated that she used to go out of the house on one pretext or other without seeking permission and would return in evening and on inquiry it was revealed that she was not at her parent's place. It is further stated that even the parents of respondent instead of advising respondent used to threaten petitioner and his parents to get them involved in criminal case as the father of the respondent is a retired policeman.
5. It is stated that on 10.2.98 when petitioner's sister namely Santosh came with her husband to their house, respondent refused to prepare tea for them saying that she was not the servant. It is further stated that on 25.3.98 when 9 petitioner's other sister namely Shashi came to their house respondent did not offer her water and refused to prepare tea. It is stated that on 25.5.98 somebody called up on telephone stating that the respondent was pregnant from him prior to marriage of petitioner.
6. It is further stated that on 5.6.98 when the parents of the petitioner were away, respondent called up her father and brother at about 9.00 PM who abused and quarreled with petitioner and also slapped his sister. It is stated that the respondent was taken away by them alongwith her cloths and ornaments who also threatened to file criminal complaint against petitioner, his parents, his sisters and other relatives. It is stated that on 22.6.98 the petitioner lodged report with police due to apprehension.
7. On 22.7.98 the respondent delivered a baby boy at Maharaja Agrasen Hospital and she was discharged on 23.7.98 after normal delivery. It is stated that neither it was a case of ceaserian nor pre-mature delivery and the child 10 was born after complete period of pregnancy. It is stated that as per the medical examination done at various hospital the EDD was shown between 19th August to 21st August but the delivery took place one month earlier from the EDD, therefore, it was concluded that the respondent got pregnant in the month of Oct '97 i.e. before marriage.
8. It is stated that on 24.7.98 the petitioner alongwith his father visited the respondent at her parents house and found the child in normal condition. It is further stated that facts reveal that the petitioner is not the father of the child delivered by the respondent on 22.7.98 and it was concealed by respondent and her parents that the respondent was pregnant from somebody else and the petitioner was induced to marry the respondent.
9. It is further stated that in the last week of July '98 the brother of respondent came to the house of petitioner in the absence of petitioner and his father and abused the mother and sister of the petitioner and threatened to involve 11 them in criminal cases. It is stated that thereafter, petitioner lodged report with police on 20.8.98 apprehending danger from respondent and her relatives. It is stated that on 27.9.98 respondent came alongwith her brothers and tried to thrust the child upon the petitioner and when he resisted they quarreled, abused and slapped the petitioner and apprehending mischief from them report was lodged with police on 29.9.98.
10. The petition was contested and written statement was filed. It is stated that as per the averment in the petition, the petition falls within the ambit of section 12 (d) of HMA and hence is not maintainable. All the facts and averments are denied. However, the medical test were admitted. It is not denied that the medical check up conducted on 18.12.97, revealed that the respondent was pregnant. It is further stated that the medical check up conducted on 29.3.98 showed respondent 18 week pregnant, meaning thereby that she became pregnant at about 27.11.97 i.e. after the date of 12 marriage. It is further submitted that as per the medical profession the period of pregnancy is considered as 38 weeks and hence the delivery was expected in the second half of Aug '98. It is further stated that as per the normal practice followed by the medical professionals the LMP is calculated from the beginning of mensural cycle and not from the actual date when the child is conceived, hence there could be gap of 10-15 days between the LMP and the date of conception. It is denied that the marriage was against her wishes. It is denied that on 5.6.98 respondent was taken away by her father and brother to her parental house. It is stated that infact respondent was left by petitioner on 4.6.98 at the Madipur Road while she was sick and pregnant. It is admitted that the respondent delivered a baby boy on 22.7.98 and that she had delivered the child after 36 weeks. It is denied that on the petitioner alongwith his father visited the child at her parental house and found the child normal. It is stated that infact on that day the child 13 was at the nursing home at Maharaja Agrasen Hospital.
11. Replication was filed reiterating an reaffirming the averments made in the petition.
12. My Ld. Predecessor from the pleadings of the parties vide order dated 1.3.00 framed following issues:
(i) Whether the petitioner was treated with cruelty by the respondent after the marriage as alleged? OPP
(ii) Relief.
13. In support of his case petitioner examined himself as PW1 and also examined PW2 Dr. Sadhana Gupta from Maharaja Agrasen Hospital; PW3 Dr. B Chadha from Maharaja Agrasen Hospital; PW4 Dr. Malini Sikka from Sadhu Vaswani Mission Medical Center; PW5 HC Dhan Raj from police station Dabri; PW6 Sh K D Shsarma- record clerk also Maharaja Agrasen Hospital; PW7 SI Md Amim from PCR New Delhi Zone and PW8 Sh Parkash Ram is father of petitioner who did not appear for his cross 14 examination and therefore the opportunity to cross examine was closed on 24.8.2006.
14. On the other hand respondent has examined herself as RW1.
15. I have heard counsel for the petitioner. The counsel for the respondent did not argue. He was given opportunity to file the written submission or argue before the date of order. Both the parties filed the written submission and I have considered the same.
16. Broadly the instances of cruelty in the present case can be categorised into two parts: (i) with respect to the mis-behaviour of the respondent (ii) with respect to the respondent being pregnant before marriage and the instances in relation to that. Primarily more emphasis is put on the issue with respect to the pregnancy.
17. PW1 testified that the marriage was consumated in the intervening night of 27/28.11.97. He stated that respondent called up on 18.12.97 stating that she was 15 pregnant. The pregnancy test showed positive result. He further stated that on 20.12.97 mother of the respondent called up telling about the pregnancy of respondent. He stated that he questioned her as to how the respondent was pregnant when even one month has not elapsed since the date of marriage. On this mother of respondent stated that in case he was not interested in the child then respondent would be ready for abortion.
18. PW2 deposed that she examined respondent and she was suffering from urinary tract infection and proved the OPD card. In her cross examination she stated that the opinion of doctor may vary from doctor to doctor. She stated that the reports may vary on the basis of clinical examination from the LMP as it is a mathematical calculation and is 100% accurate. She further stated by early pregnancy, she meant one or two week over-due.
19. PW3 proved the OPD card as per which the patient was 18 week pregnant and she advised tonics. In cross 16 examination she stated that she is a gynecologist and deals in only the pregnancy cases and obstetrician. She stated that she had mentioned in her report that the pregnancy could be of 18 weeks and there could be variation of one or two week. She further stated that she had given the above report on the basis of history of LMP and clinical examination of the patient.
20. PW4 testified that she had examined the patient for the routine ante-natal check up at 12-14 weeks pregnancy and proved the OPD card Ex. PW4/1. She stated that she had recorded the LMP as 12.11.97 and the EDD as 20.8.98. She further stated that the mensural period of a woman is on an average after 28 days. But it could vary at times for a week before or one week late. She in answer to question stated that the fertile period of a woman is one week before and one week after the mensural period. In her cross examination she stated that the respondent has not shown any document regarding her medical examination done prior 17 by other doctors. She further stated that a woman can conceive at any time between the abovesaid period. She in answer to the question whether the period of delivery can vary from one week prior to the date of delivery or subsequent to that date or that in exceptional cases premature labour pains are possible which can occur at any time during the third semester of the pregnancy stated, that the doctors who had clinically examined the patient can only give the exact period of gestation.
21. Now the question arises whether there was pregnancy prior to the day of marriage or not?
22. As per section 112 of the Indian Evidence Act the birth of a child during the subsistence of a valid marriage between a mother with a man or within 280 days after dissolution of marriage when the mother remains unmarried is conclusive proof of the legitimacy of the child, unless it can be shown that the parties to the marriage had no access to each other at anytime when he could have been begotten. 18 It is not disputed that the child was born during the wedlock. The child born even after one day of marriage is legitimate. The burden is on the petitioner to show that he had no access at the time of marriage and that he had no opportunity to approach his wife and that she too did not have the opportunity to approach him during the relevant time.
23. Ld. Counsel for the petitioner relied upon Ajay Kumar Dubey V. Sushma Devi I (2005) DMC- 92 wherein the petition was U/s. 12 (1) d HMA and U/s. 13 (1) (ia) (ib) HMA. The petition was filed on the ground that the respondent was pregnant at time of marriage, subsequently divorce on the ground of cruelty was granted. In this case after marriage on 9.3.91 the respondent came to the house of the appellant/husband and after three days she was taken back and thereafter, she never returned. Thereafter, he came to know in the month of October that she gave birth to a matured child on 13.7.91. She had admitted that on 12.7.91 19 she was taken to the hospital by the appellant due to miscarriage. On these facts the trial court held that the respondent was pregnant at time of marriage and the fetus was conceived by then. In the cited case the child was born after four months of the marriage.
24. On the other hand Ld. Counsel for the respondent has also filed the written submission and in support cited judgments and relied upon Modi's Textbook of Medical Jurisprudence & Toxicology.
25. In Kamti Devi & Ors V. Poshi Ram IV (2001) SLT 120 it was held that the parties who wants to dislodge the conclusiveness engrafted in section 112 has the burden to show negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity to approach him during the relevant time. Normally, in the rule of evidence in other instances, the burden is on the party who asserts the positive but in this instance the burden is on the party who pleads negative. 20
26. In Nand Kishore V. Munnibai AIR 1979 MP 45 it was held that imputing unchastity to a woman is a charge of very serious nature. The charge if established may result in serious consequences. Not only would such a women be condemned in the society an be lowered in the eyes of her relatives and associates but may also suffer the child, being called a bastard. It is therefore, just to see for more cogent and convincing evidence in such cases than the one which may be sufficient to create doubt.
27. The respondent had filed the application for getting the DNA test of the petitioner to resolve the whole issue regarding the legitimacy of the child and it was contested by the petitioner therefore adverse inference has to be drawn against him that the child was begotten from him only. Moreover, even going by the medical evidence on record, the doctors who had examined her clinically had given the pregnancy of 18 weeks on 12.3.98 and had also given the expected date of delivery any time in the end of July '98 and 21 the child was delivered on 22.7.98.
28. Ld. Counsel for petitioner has submitted that the expected date of delivery was 19th or 20th August 1998 and the child was born four weeks earlier.
29. Firstly let us examine whether with the variation of two weeks, what can be said as the date of conceiving as assessed by the doctor. Normally, the conception would have happened somewhere in the last week of Oct '97 and there is always a variation of about one or two weeks, therefore, it would come somewhere around the date of marriage. Even the respondent has stated that the child was a premature.
30. The petitioner has drawn inference that the child was normal as the respondent was discharged from the hospital on the very next day. However, the respondent has not produced the medical record regarding the delivery or that the child remained in the nursing home of the hospital. Even otherwise in the absence of the said medical record, 22 the evidence cannot dislodge the presumption regarding the legitimacy of the child when it is born within the subsistence of the marriage, therefore, no question can be asked for the same and the child is to be held as legitimate. Moreover, the petitioner had shied away from the scientific test of DNA to establish his paternity. It further goes to prove that the respondent was ready even to face the same. Under the circumstance, it cannot be said that the petitioner is not the father of the child. The judgment of Ajay Kumar Dubey supra cited by counsel for the petitioner is not applicable to the facts of the present case. In the present case it is doubtful whether the child was conceived prior to marriage and it could not be said conclusively by the medical evidence.
31. Now coming to the instances of conception of respondent prior to the marriage and the alleged telephonic call received by them. Can these instances amount to cruelty? Let us examine the evidence in this regard. 23
32. PW1 has deposed that the mother of the respondent had stated that the respondent is ready for going for abortion in case he is not interested in the child. He stated that he went to the house of the respondent and on inquiry about this from the mother and brother of the respondent, the family members of the respondent told that he was levelling false allegations against the respondent. He further stated that on 1.1.98 his mother received a telephonic call from a lady caller who informed that the respondent was carrying the child from her son. The same was objected being hearsay as the mother of the petitioner is no more alive. He stated that on 20.1.98 again one telephonic call came who repeated the same and when the same was told the respondent, she expressed her desire to go to her parent's house and verify about the said calls. Thereafter, respondent left for her parents house on 21.1.98 and she came back with her mother and brother who abused them and stated that they were levelling false allegations against the respondent 24 and he asked them to inquire about said telephonic calls.
33. Admittedly, the fact regarding the telephonic calls was hearsay. The mother unfortunately had died before she could reveal the truth to the court. The mis-behaviour of the parents of the respondent on these allegations are natural as the allegations were being levelled against their daughter's character, therefore, it cannot be said as mis-behaviour rather it was the natural out burst.
34. In his cross examination PW1 stated that he had made inquiry from the mother and brother of respondent as to how the respondent was pregnant. The same was not mentioned in the petition and was beyond pleadings.
35. There are a number of improvements in the evidence. Petitioner has not mentioned in the petition that he had made inquiry regarding the telephonic calls. He even has made improvement that the respondent mis-behaved and stated that she was forcibly married to him when she wanted to marry someone else but her parents did not agree. These 25 facts therefore, cannot be proved and the conduct of the respondent is quite natural. She was aggrieved wife against whom allegations were levelled to the extent that her husband was not willing to accept the fatherhood of their child. Since it has not been proved that the telephonic calls were received therefore, it could not be proved that the conception of respondent was prior to marriage therefore, it cannot be said that there was any cruelty caused to the petitioner on that account.
36. The other instance other than pregnancy is only the instance of mis-behaviour by respondent that was with the married sister of the respondent. It is stated that on 10.2.98 when she was asked to prepare tea, respondent refused. He also stated that respondent used to misbehave with him and his father. But he failed to give specific instances.
37. PW8 is the father of the petitioner. He deposed on the lines of petition. He had not been cross examined. He merely stated that the respondent showed disrespect to the 26 petitioner and his relatives. He stated that on 10.2.98 when his married daughter namely Santosh came with her husband to their house, respondent refused to serve them tea. He also stated that on 25.3.98 when his other married daughter namely Shashi Lata came to their house, again respondent refused to serve tea and even did not offer glass of water. He further stated that respondent had filed complaint with CAW cell on the basis of which FIR was registered against twelve persons of their family. He further stated that all the articles were returned to the respondent except a few which she refused to take back. He stated that the trial court has discharged nine persons including all his daughters and son-in-laws.
38. Counsel for respondent on the other hand cited Maya Devi V. Jagdish Prasad I (2007) DMC 325- SC the expression cruelty has been used in relation to the human conduct or human behaviours. There is no quarrel to the preposition of the law cited.
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39. He also cited Shankar Chakravarty V. Puspita Chakravarty I (2006) DMC -582 wherein the parties were living separately for 19 years and there was no chance for them to live together. The decree of divorce was granted.
40. Durga Prasanna Tripathy V. Arundhati Tripathy 2005 VII AD SC- 455 is a judgment on ir- retrievable break down of marriage. In this case the parties were living for about 14 years separately and it was held that the marriage has broken down ir-retrievably.
41. Section 13 (1) (ia) provides that the marriage between two Hindus can be dissolved by decree of divorce if the other party has after the solemnisation of the marriage, treated the petitioner with cruelty.
42. The law on the subject has been summarized in Naveen Kohli V. Neelu Kohli I (2006) DMC 489-SC a judgment was handed down by Hon'ble Mr Justice Dalveer Bhandari. To quote:
"The word 'cruelty' has to be understood in the ordinary 28 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, 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 29 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 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 trivial 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 30 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."
43. These instances are too trivial to be taken notice of as they are simply the ordinary wear and tear of the married life, when the respondent was herself undergoing such grave tension of her facing the allegations of carrying the child not from the petitioner would rather be the cruelty upon the respondent.
44. Now coming to the instance of complaint regarding demand of dowry. RW1 deposed regarding dowry demand and harassment on account of insufficiency of dowry. She stated that petitioner was demanding motorcycle and other costly items. She also stated that petitioner was thrashing 31 her after consuming alcohol. It is also stated in the affidavit that the family of the petitioner even attempted to burn her alive by asking her to prepare tea while they knowingly left the LPG gas cylinder open. She stated that another attempt on her life was made when she suffered serious electric shock from the refrigerator when she was asked to prepare cold drinks and was taking out ice from the fridge. It is also stated that her parents has arranged for Rs. 20,000/- as per the demand of petitioner and it was paid by brother of respondent namely Jagdish who went alongwith his friends G S Lamba and P K Ghai. It is also assured that his brother had assured that the instalment of the motorcycle would be paid by them. It is also stated that petitioner used to beat her all over her body even at the stage of advance pregnancy with intention to kill the child before its birth. It is also stated that she was kept hungry for days during her pregnancy due to which her health deteriorated. It is also stated that they had retained her entire istridhan. 32
45. In her cross examination she stated that at time of her marriage, her father was retired. She stated that her father had retired 6-7 years prior to her marriage. She stated that she does not have any document to show that her father had taken loan at time of her marriage. She stated that her father-in-law had retired as Class I Gazetted Officer from Deptt of Customs. She stated that she does not know whether the financial position of her in-laws was better than her parents and that her in-laws owns property worth crore. She stated that she does not know whether the petitioner was having a scooter prior to the marriage. She admitted that she had levelled similar allegations at the dowry cell. She admitted that 12 persons were involved in the said case and at present the petitioner and his parents are facing trial as others were discharged. She admitted that she had never seen the petitioner driving the motorcycle. She also stated that she does not know that her in-laws are follower of Radheyswami sect and are tee-tootler. She admitted that 33 she had filed the cases of dowry; maintenance U/s. 125 Cr.p.c.; U/s. 18 of Hindu Adoption & Maintenance Act and defamation. She stated that the case of defamation was dismissed.
46. The respondent in her written statement has nowhere stated the averment regarding demand of dowry, whereas when she appeared as witness she alleged demand of dowry and harassment on account of dowry. These allegations are after through and are false. Admittedly, she had not levelled any allegations against the petitioner regarding his beating her after consumption of alcohol and beating at the advance stage of pregnancy. The allegations are false and further the respondent had arrayed as many as 12 persons all from the family of petitioner. Levelling of false allegations of dowry; naming the married sister and unmarried sisters of petitioner would certainly cause mental cruelty to the petitioner as it would result in disturbing the married life of sister of petitioner. The leveling of such 34 allegations even with vengeance is not permissible.
47. The respondent also has levelled certain allegations against petitioner which are after throught and are false. This also amounts to cruelty. The Hon'ble Supreme Court in the celebrated judgment titled as Naveen Kohli V. Neelu Kohli I (2006) DMC 489-SC held that if the parties are indulging in litigating against each other and there is long separation then it can be treated as ground of cruelty. Both the parties are litigating between each other in several cases. The record of the case also show that effort for compromise was made. The parties admittedly are living separately since the year 1988 and with such a long separation, I am of the opinion that the marriage has become dead, hence the ratio of the said celebrated judgment squarely applies to the facts of the present case.
48. Accordingly, I am of the opinion that the petitioner has succeeded in proving that the respondent had treated him with cruelty by levelling false allegations of dowry 35 against him and his family members and has also filed various other cases against him, although the case of defamation was dismissed. It is well settled law that the statement made in the written statement can also be the cause of cruelty as held in judgment titled as V Bhagat V. D Bhagat II (1993) DMC 568.
49. In the present case the instances of cruelty i.e. filing of various false complaint against petitioner and his family members have been been proved. Issue no 1 is decided in favour of petitioner accordingly.
RELIEF
50. Accordingly, I am of the opinion that in view of my findings in issue no 1 petitioner is entitled to the decree of divorce. Parties to bears their own cost. Decree of divorce be drawn. File be consigned to record room.
ANNOUNCED IN OPEN COURT GURDEEP SINGH
the 30 of April, 2007
th
ADDITIONAL DISTRICT JUDGE
DELHI.