Delhi District Court
Ranjan Kaul vs Santosh Kaul @ Sumi on 12 March, 2007
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IN THE COURT OF SHRI GURDEEP SINGH
ADDITIONAL DISTRICT JUDGE :DELHI
In re:
HMA No. 126/06
Ranjan Kaul
s/o. Sh P N Kaul
r/o. C-5/C-25-A
Janakpuri
New Delhi ........Petitioner
Versus
Santosh Kaul @ Sumi
w/o. Sh Ranjan Kaul
r/o. YMCA Hostel No II
Young Women Working Hostel
Malviya Nagar Extn
Saket, New Delhi ........Respondent
PETITION FOR DIVORCE
U/s. 13 (1) (ia) (ib) of the HINDU MARRIAGE ACT
JUDGMENT:
1. This is a petition U/s. 13 (1) (ia) (ib) of the Hindu 2 Marriage Act, 1955 (hereinafter referred to as HMA) 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 1.2.90 at Jammu according to Hindu Rites and Ceremonies. The respondent after the marriage came to the house of the petitioner and started living with him in a joint family and the petitioner is the only son of his parents. A female child was born on 28.3.91 out of the wedlock. It is stated that immediately after the birth of the child, respondent took the child to Jammu and when the child was about 8 months the custody of the child was left with the father of the respondent at Jammu. It is stated that the petitioner went to Jammu to bring back the child and respondent and respondent assured that she will return. It is stated that she did not return for about two years and sent a notice through counsel demanding maintenance for herself and child. It is stated that he is regularly paying the maintenance under Cr.P.C. to the child under the orders of 3 Jammu Court. It is stated that the child who is living at Jammu with parents of respondent is not being looked after by the respondent as she herself is employed and living at New Delhi. It is stated that no maintenance has been granted to the respondent by the Jammu Court. It is stated that the respondent has without any reasonable cause withdrew from the society of petitioner from the month of Mar '92 when her mother came to Delhi to see the respondent. It is further stated that the respondent returned to the house of the petitioner after about two years in the month of April '94 after reconciliation made by the Women Cell. It is further stated that during this period also the stay of the respondent was not continuous as she had maintained another residence at the Women Working Hostel, Saket and she refused to leave the hostel and on account of this there was tension between them. It is further stated that respondent during her stay at hostel neither lived with petitioner as his wife nor took care of the infant. When she was questioned about this she stated that she 4 was engaged in some high class business and would not like to stay with ordinary people like her in-laws. It is stated that he suffered great mental pain and anguish as he did not knew as to what his wife was doing and meeting what type of people. It is stated that he had objected to her stay at hostel, coming late in night, meeting strange people, leaving the house without informing anybody at house and returning after some days. It is stated that the conduct of the respondent caused great worry to the old parents of the petitioner who are used to traditional and conservative way of living. It is further stated that whenever his parents admonished respondent, she would object saying it as old fashioned. He also gave the details of her stay during the period from 30.5.94 to 11.7.94 where she remained at the house of the petitioner for 3-4 days at a stretch and remained out for the remaining days. It is stated that the respondent had in all resided at the house of the petitioner for a period of only 18 days and stayed out for 10 months and she left the home in May '91. It is stated that on 8.6.94 respondent 5 left for Jammu leaving the baby with him and when he gave telegram to call her back, her father wrote a letter stating that respondent was not at Jammu and urged petitioner to visit YWCA, take separate house and leave the child at Jammu. It is further stated that respondent had filed a petition U/s. 9 of HMA at Jammu Court and it was contested by him but it was dismissed in default as the respondent was not willing to join petitioner. It is further stated that the respondent had filed a complaint with CAW Cell, Delhi also upon which the FIR was registered at police station Malviya Nagar wherein she demanded return of goods and divorce from petitioner and the case is still pending. It is stated that on 30.5.94 respondent had in writing admitted that she has received all her jewellery and nothing was retained by petitioner. It is further stated that the petition had returned all the goods wanted by respondent. It is stated that he and his parents had to obtain anticipatory bail because of the harassment. It is further stated that respondent agreed for divorce by way of mutual consent but 6 before moving the petition for first motion respondent started making unreasonable demands and he agreed to pay an amount of Rs. 80,000/- as maintenance but she did not agree.
3. The petition was contested and the para with respect to marriage is not disputed. However, it is denied that the child was left with the custody of father of respondent when the child was 8 months old. It is also denied that the respondent took the child to Jammu immediately after birth despite objection from petitioner. It is also denied that the petitioner went to Jammu and stayed there for a fortnight in order to bring back respondent and child. It is stated that respondent was infact treated with cruelty and was thrown out of the house and therefore, she had got served the legal notice claiming maintenance from the petitioner. It is admitted that the maintenance is being paid to her child. It is stated that while she was pursuing her computer course at Delhi, her father used to look after the child at Jammu. As regards the contents of para no 7 regarding Jammu Court refusing to grant 7 maintenance to her, it is stated that it is a matter of record, thereby the same have been admitted by the respondent. It is denied that she had without any reasonable cause had withdrawn from the society of petitioner in the month of Mar '92 and maintained another residence at hostel. It is stated that infact she was thrown out of the matrimonial house due to insufficiency of dowry. The story regarding telegram is stated to be concocted. It is admitted that the petition U/s. 9 of HMA was filed by her. The fact regarding lodging of FIR is also admitted, however, it is denied that she had taken her jewellery. The contents with respect to para no 13 it is not specifically denied wherein petitioner had sought divorce by way of mutual consent and before filing of the petition for first motion she made unreasonable demands.
4. Replication to the same was filed reiterating and re-
affirming the averments in the petition.
5. My Ld. Predecessor vide order dated 6.6.02 framed the following issues:
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(i) Whether the petitioner was treated with cruelty by the respondent since the solemnisation of marriage? OPP
(ii) Whether the respondent has deserted the petitioner without sufficient cause for a period of more than two years prior to the filing of the present petition? OPD
(iii) Relief.
6. Petitioner examined himself as PW1 and also examined PW2 Sh P N Kaul father of petitioner.
7. Respondent examined herself as RW2 and also examined her mother Smt Raj Dulari as RW1.
8. I have heard counsel for the petitioner. Respondent choose not to argue despite, liberty granted to her counsel to argue before the date of order. I have myself gone through the record.
9. My issuewise findings are as under:
ISSUE NO 1
10. The allegations regarding cruelty are mentioned in para no 5, 7, 10 and 11 of the petition.
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11. Petitioner deposed on the lines of petition. Respondent has denied the contents of para no 5, however, the contents with respect to 7 are not specifically denied.
12. PW1 in his cross examination stated that he is living separately from his wife since May/June 94. He admitted that in the year 1994 respondent was admitted at Khanna Nursing Home. He denied that respondent was admitted as he and his sister had administered poison to her. He admitted that stomach wash was given to respondent as she attempted to consume some poisonous substance. He stated that no report was lodged with the police either by respondent or by him.
13. He admitted that after 14 days of birth of the child, respondent's mother took her to her son's house. He denied the suggestion that mother of respondent wanted to take the respondent and child to Jammu to which they objected. He denied the suggestion that they were annoyed as respondent gave birth to a female child. He denied the suggestion that they never lived together after Nov '91 in the matrimonial 10 home.
14. The fact regarding stomach wash is beyond the pleadings as nothing has been stated with respect to this. The petitioner was not cross examined on the aspect that he visited Jammu in order to bring back respondent and the child or that the respondent had assured that she will return but did not return. Further he has not been cross examined on the aspect that despite of reconcilation made by the CAW cell, she maintained separate residence. Nor there is cross examination that she refused to live with petitioner as his wife or that she had stated that she was engaged in some high class business. He also not been cross examined on the aspect that she lived only for few days with petitioner. He also was not cross examined on the aspect that after they agreed for divorce by way of mutual consent, she declined. Thus, all these instances stands proved on record.
15. PW2 deposed that respondent liked free western life style and considered them as old fashioned and traditional people. 11 He also deposed regarding taking of child by respondent to Jammu without their consent and she left the house in the month of April '94 and finally in the month of July '94. He stated that thereafter she involved him and his wife in case regarding dowry demand. He further stated that she herself did not wished to live with petitioner.
16. In her cross examination, he stated that behaviour of the respondent was not cordial towards him and his wife nor towards his daughter. He denied the suggestion regarding dowry demand. He denied that they did not want to keep respondent at the matrimonial home. He stated that both resided at the matrimonial home earlier for five month and thereafter for 37 days. He states respondent left the matrimonial home after staying there for five months. She returned after 4-5 month. He stated that respondent after returning from Jammu started to live at hostel at Saket. He further stated that the respondent after giving birth to child at matrimonial home went to hostel. He stated respondent 12 finally left matrimonial home in 1994.
17. On the other hand respondent deposed that her in-laws harassed her for bringing insufficient dowry. She further stated that since the dowry brought by her was less than their expectation, her in-laws were not interested in her having good relation with her husband. This was beyond the pleading. She also stated that her in-laws were not happy with the female child. This was beyond the pleading. She stated that on 2.2.92 on the occasion of her second wedding anniversary her mother came to her matrimonial house to give gifts but she was under tension due to the torture given by her husband and on the same day at night her husband and sister-in-law administered forcibly poison in her mouth and thereafter, she was taken to the hospital and stomach wash was done. She further stated that after about two weeks of the above incident she alongwith her husband and daughter went to Jammu but her husband returned back alone saying that he will come back after two week but never came nor contacted her. She 13 stated that thereafter, the telephone calls made by her were avoided by her husband and his family. She stated that thereafter, she filed the petition for maintenance.
18. She in her affidavit denied that her behaviour from very beginning was cruel towards her husband and her parents. She also denied that she had joined the company of her husband in April '94. She stated that infact they never lived together from the end of Feb '92 when her husband left her at Jammu. She also denied that she was staying at the hostel at Saket and also denied that on being asked about it she stated that the was in some high class business and would not like to stay with ordinary people. She also denied that she had compelled her husband to take rented accommodation. She denied the details of her stay as stated in para 7 of affidavit of PW1.
19. In her cross examination, it was pointed out by counsel for the petitioner that the averments in the affidavit of RW2 in para no 2, 3, 4, 7, 8 and 17 are beyond pleadings and that the averments in para no 11, 12, 13, 14, and 18 are in negative 14 form.
20. Apparently the affidavit has not been made correctly and the averments beyond pleadings cannot be read. It is settled proposition of law that averment beyond pleadings cannot be read. Recently our own High Court in case titled as Brij Mohan V. Sunil Kumar Gupta 138 (2007) DLT 217 held that the evidence which is beyond pledings cannot be taken into consideration.
21. RW2 in her cross examination she stated that the address given by her is that of her brother where she is residing. She could not produce any document to show that she is residing at the same address. She denied that she is residing at 555, Sainik Farms, New Delhi and not at Gaziabad. She stated that her daughter studied at Jammu till 6th standard and thereafter she was put in Boarding school at UCS Camp, Navrangpur, Gurgoan. She stated that her daughter is residing at Jammu since 1992 when petitioner turned her out of the house. She 15 admitted that she had not lodged any case against petitioner for administering her poison. She stated that petitioner had apologised about it to her mother. She admitted that she has not filed any document to show that she was admitted at Khanna Nursing Home. She admitted that she had received some of her articles from petitioner on 30.5.94 at the CAW cell. She stated that there are other articles also lying with the petitioner. She stated that she has received only the jewellery articles. She denied her signatures on Ex. RW1/DA wherein she mentioned that she did not want to take further action on the complaint. She admitted that she had filed the petition U/s. 9 of HMA at Jammu Court, however, denied that the same was dismissed in default. She stated that the same was dismissed as she and her counsel reached late. She stated that she did not file application for its restoration. She stated that she stayed at hostel as paying guest in the year 1994 and 1995 and never thereafter. She denied the suggestion that she has been working with M/s. Sezour, USA based company since 16 Dec '98. She admitted her resume Ex. RW2/DB. She denied that she had inflicted cruelty upon petitioner and took away the daughter from him and even thereafter, is not keeping the child with her. She denied the suggestion that despite the fact that she was working, she had told petitioner that she was not working. She admitted that she was served with legal notice at YMAC hostel. She stated that she is not aware that YMCA hostel is meant for working women only. She denied that she lived with petitioner for a period of 30 days only for the period from 30.5.95 to 11.7.94 (it should be 30.5.92 to 11.7.94). She stated that petitioner never lived with him.
22. She denied the suggestion that the FIR registered U/s. 498- A/406 IPC at police station Malviya Nagar but she had given her address of YMCA hostel, Malviya Nagar. She stated that she does not have any document to show that she had complained that the petitioner had given beatings to her nor she have any medical record to show the injuries. She denied the suggestion that she left the matrimonial house as father of 17 petitioner had asked her to desist from meeting any male friends at her matrimonial house. She stated that she does not recall whether she had stated that she does not want to live with the petitioner and sought divorce. She denied the suggestion that before the filing of the present petition, settlement had been arrived at between them for divorce by way of mutual consent. She also denied the suggestion that after submission made at the CAW cell for divorce by way of mutual consent she made demand of Rs. 8,00,000/- from petitioner. She stated that she had demanded Rs. 10,00,000/- for her daughter.
23. Petitioner has alleged that respondent was not staying at the matrimonial house whereas mother of the respondent stated that her daughter was thrown out of the matrimonial house due to insufficiency of dowry and even after she gave cash on different occasion they were not satisfied. This is beyond pleading. She also stated about the incident of stomach wash of respondent. This is also beyond pleading. 18
24. RW1 in her cross examination conducted on 19.4.05 she stated that her daughter and her son-in-law are living separately for the last 1 ½ - 2 years whereas respondent herself stated that she never lived with petitioner after 1992. She denied that she had come to Delhi after her grand- daughter was seven month old and stated that she had come to Delhi when she was only two days old. She further stated that she does not know what proceedings were initiated against petitioner by the respondent. She admitted that she had not filed any complaint regarding attempt made by petitioner to poison her daughter. She admitted that sister of petitioner was married prior to the marriage of petitioner.
25. The averments of para no 7 which primarily contain the allegations regarding cruelty committed by respondent have been admitted as the same has not been specifically denied.
26. On the other hand respondent alleged that she was harassed on account of insufficient dowry and that she was attempted to administer poison. She denied that any 19 compromise was arrived at between them before the CAW cell and thereafter, she refused by making unreasonable demand.
27. The law on the subject has been summarised in a three bench judgment titled as Naveen Kohli V. Neelu Kohli I(2006) DMC 489-SC. The judgment was handed down by Hon'ble Mr 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 20 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. If 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 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 21 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 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 22 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."
28. The petitioner has given some dates on which the respondent stayed with him at the matrimonial house and for how much time. This purportedly shows the period when she was not staying at the matrimonial house. Petitioner has further stated that after the birth of child respondent left for Jammu and when he went there to bring them back, she assured that she will return but did not return and instead sent legal notice. The respondent on one hand denied staying at hostel beside her matrimonial house but on other hand admitted that the legal notice was received by her at the hostel address. A woman while living in her matrimonial house with traditional people and leaving the house at regular interval without informing the petitioner or his parents and returning 23 on her own at late odd hours and without informing as to what type of job she is engaged in should be sufficient ground to constitute cruelty in the mind of petitioner. In the Indian society a woman living in a joint family having traditional value is supposed to take permission before visiting any place and should not come home at odd hour or stay at any other place other than her matrimonial house. Respondent has claimed that she was being harassed for dowry, however, no specific averment is given as when such demand was made. Mother of respondent also stated that she used to give money but no date has been given. It appears to be vague. The respondent has admitted that they had arrived at a compromise for divorce by way of mutual consent but did not specifically denied that she made unreasonable demands from petitioner which he could not meet.
29. In view of the law laid down by Hon'ble Supreme Court I am of the opinion that the conduct and the acts of the respondent has caused mental cruelty to the petitioner. 24 Moreover, the marriage between the parties has been irretrievably broken down as the parties are living separately since the year 1994 as per the version of petitioner while respondent states that they have been living separately since the year 1992. The marriage has become dead for all purpose. Accordingly, I am of the opinion that it has been proved on record that the respondent has treated petitioner with cruelty. Issue no 1 is decided in favour of petitioner against respondent.
ISSUE NO 2
30. As discussed above the petitioner has alleged that respondent was not living with him and she initially left the matrimonial house on 28.3.91 and thereafter in the month of April/May '94. On the other hand respondent had filed a petition U/s. 9 of the HMA but the same was dismissed in default, however, the same was not got restored by the respondent. The petitioner alleged that when he contested the said petition, respondent choose not to proceed with the 25 matter. These facts has not been specifically denied. Further, in para no 7 petitioner has given the details of stay of the respondent at the matrimonial house for 31 days only for the period from May '954 to July '94 where she had maintained a residence at the women hostel simultaneously, therefore, I am of the opinion that petitioner has proved on record that respondent had deserted petitioner without sufficient cause. Issue no 2 is decided accordingly in favour of petitioner. RELIEF
31. Accordingly, as per my findings in issue no 1 and 2 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. Accordingly, the marriage between the petitioner Rajan Kaul and respondent Santosh Kaul stands dissolved. No order as to cost. Decree of divorce be drawn. File be consigned to record room.
ANNOUNCED IN OPEN COURT GURDEEP SINGH
the 12 of March, 2007
th
ADDITIONAL DISTRICT JUDGE
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DELHI.