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The respondent-husband filed a replication.

From the pleadings of the parties, following issues were framed on 10.04.2015:-

"1. Whether the petitioner is entitled for a decree of divorce on the grounds as mentioned in the petition?

2. Relief."

The respondent-husband appeared as PW1 and reiterated his version in the divorce petition and stated that the relationship between the parties continued to deteriorate and the appellant-wife remained hostile and aggressive towards his parents and his sister. He referred to one incident when the father of a friend of his son Arjun Saigal (PW3) enquired from him as to how Arjun had sustained serious injuries on his back and chest. On enquiry from his son, he disclosed that the injuries had been inflicted with a clothes wire hanger by the appellant-wife and he further disclosed 4 of 20 FAO-4720-2017 (O&M) -5- that the appellant-wife had brutally beaten him and his younger brother on several occasions but the child was too scared and ashamed to tell anyone about it. When he confronted the appellant-wife about this, she did not deny the allegations and instead became belligerent and defiant. The husband-respondent recorded the conversation in the CD (Ex.P1) and its transcript (Ex.P2). Thereafter, the respondent-husband narrated the incident which took place on 30.04.2014. He received a call from his son, Arjun (PW3) who disclosed that the appellant-wife was abusing and attacking him and that the police had been called. The respondent-husband reached home to find a police official with the appellant-wife and Arjun. On enquiry, he came to know that appellant-wife had shouted at Arjun alleging that he was an expensive child to maintain and when Arjun responded that his father used to give him the money, she attacked and abused him besides calling the mother and sister of the respondent-husband as prostitutes. She also shouted and abused the respondent-husband alleging that he was having an affair with his lady colleague in London who was separated from her husband. The respondent-husband had tried to explain that he only had a professional relationship with that lady. However, he could not pacify appellant-wife and she continued to make enquiries about his conduct with lady colleague from his other colleagues. She would send him abusive text messages and calls. The respondent-husband begged her not to destroy his professional life. He further stated that on 01.05.2014, she had threatened to come to his office and this made him to file a civil suit for injunction against her which was rejected and the appeal against the said order was also rejected. In this backdrop, he alongwith children had left the matrimonial home on 07.05.2014.

Learned Senior Counsel, Mr. Kanwaljit Singh, appearing for the appellant-wife has argued that the certificate dated 18.11.2016 (page No. 329 of Family Court record) under Section 65-B(4) of the Indian Evidence Act, 1872 for placing on record conversation in the CD (Ex.P1), its transcript (Ex.P2) and text messages (Ex.P3) is not admissible in evidence. He has referred to judgment passed by this Court in CR No. 1616 of 2020 titled as Neha and another vs. Vibhor Garg and others, in which it is held that an act of recording conversation without the knowledge of the wife is illegal and amounts to infringement of right to privacy. He has further referred various judgments passed in Ramchander vs. Ananta 2015(2) R.C.R. (Civil) 1, Sangita Rani wife of Sanjeev Kumar vs. Sanjeev Kumar son of Sh. Manmohan Lal 2017(1) Law Herald 102, Dinesh Kotwal vs. Anju Kotwal 2017(4) R.C.R. (Civil) 136, Dilbagh vs. Smt. Sushila 2017(3) PLR 671 and Special Leave to Appeal (C) Nos. 17337-17338-2017 titled as Col. Pawan Kumar Sharma vs. Smt. Bhavana Sharma, on the proposition that vague assertions of jealousy, selfishness and possessiveness causing unhappiness or stress, mere coldness or lack of affection do not constitute cruelty and irretrievable break down of the marriage cannot be made a ground for granting a decree of divorce under Section 13 of the Hindu Marriage Act, 1955.

Heard learned counsel for the parties.

A perusal of the Family Court record shows that the certificate under Section 65-B of Indian Evidence Act, 1872 is dated 18.11.2016 (Ex.P4). The respondent-husband tendered his affidavit on 19.02.2016 (Ex.PW1/A) and on the same date, he tendered CD Ex.P1, its transcript Ex.P2 and text messages Ex.P3. On 24.10.2016, the respondent-husband was cross-examined. A perusal of the cross-examination shows that he had furnished text messages (Ex.P3) and produced CD (Ex.P1). The contents of CD, its transcript and text messages (Ex.P1 to P3) were only questioned. The certificate under Section 65B of Indian Evidence Act was placed on record on 18.11.2016 and the wife was cross-examined on 21.12.2016 and she had admitted that copy of CD (Ex.P1) was supplied to her before recording cross-examination of the respondent-husband and she also admitted that in her affidavit dated 21.12.2016 (Ex.RW1/A), she had not mentioned anything about CD Ex.P1 or its transcript Ex.P2. She merely denied the material incorporated in the transcript Ex.P2. With respect to text messages Ex.P3, she stated that some sentences were missing and some sentences had been incorporated. She further admitted that she had not 10 of 20 FAO-4720-2017 (O&M) -11- brought on record details of the sentences which she claimed were wrongly incorporated in Ex.P3 and details of the sentences which had been omitted in Ex.P3. Hence, for all intents and purposes, CD Ex.P1, its transcript, Ex.P2 and text messages Ex.P3 were part of the record and had been given to the appellant-wife before her cross-examination done on 21.12.2016. Even the certificate under Section 65B of Indian Evidence Act, was filed prior to her cross-examination i.e. on 18.11.2016. Since no evidence was led by the appellant-wife with respect to correctness of the CD Ex.P1, its transcript Ex.P2 and text messages Ex.P3, the contents of these evidences were rightly accepted by the Family Court and taken into account for deciding the divorce petition. On this point, reference can be made to a judgment passed by Rajasthan High Court in Preeti Jain vs. Kunal Jain and another 2016 AIR (Raj) 153. In that case, the Court had examined Section 14 of the Family Courts Act, 1984 and Sections 65B and 122 of the Indian Evidence Act, 1872. Section 14 of the Family Courts Act, 1984 is reproduced as under:-

With the above said observations, the judgment of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, 2005 (3) Apex Criminal 49 was overruled in Anvar P.V.'s case (supra).

Hence, the aforesaid judgment and the judgment passed in Neha's case (supra), would not be of any help to the appellant-wife. However, against the judgment of Neha's case (supra), SLP(C)-21195- 2021 is pending.

In the present case, as per the facts, certificate under Section 65B was placed on record on 18.11.2016 and the conversation in the CD 15 of 20 FAO-4720-2017 (O&M) -16- (Ex.P1), its transcript (Ex.P2) and text messages (Ex.P3) were taken on record. During cross-examination, the appellant-wife had an occasion to lead any evidence to show that there were deletion or addition in sentences in CD (Ex.P1), its transcript (Ex.P2) and text messages (Ex.P3). However, she did not lead any evidence. Therefore, for all intents and purposes, the above said evidence led by the respondent-husband has been correctly taken into account for deciding issue No. 1 with respect to cruelty meted out to the respondent-husband. Another ground of cruelty was that the appellant-wife used to make frequent calls in the office of her husband to Manish Rai (PW2), who was an employee in his firm Needle & Thread Pvt. Limited. He stated that the appellant-wife would persistently call their office in the years 2013 and 2014 to enquire about the timing of the arrival and departure of the respondent-husband in the office. Similar enquiries about some lady colleagues were also made by her. He further stated that he was asked extremely personal questions as to how respondent-husband used to treat lady colleagues and whether or not he flirted with them. She also made enquiries from his office colleagues viz. Dinesh, who was the office boy and Vishwanath, who was their pantry boy, on the same footing as per the deposition made by Manish Rai (PW2). The appellant-wife had publicized her husband as a womanizer, drunkard and had bad habits. The said act of the wife would amount to cruelty as it would demolish the reputation of husband. The explanation given by the wife that she did so to protect the future of the children could not wipe out her act of demolishing reputation of her husband. The Supreme Court in Vishwanath S/o Sitaram Agrawal vs. Sau. Sarla Vishwanath Agrawal 2012(7) SCC 288, held that wife publishing notice in newspaper making baseless allegations that her 16 of 20 FAO-4720-2017 (O&M) -17- husband was womanizer and drunkard, would amount to cruelty and it further held that event of cruelty which happens subsequent to filing of divorce petition, can also be taken into consideration. The concept of mental cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief, human values and their value system. The Supreme Court referred various judgments and summed up as under:-