MAT.APP.52/2009 Page 1 of 42 IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 06.01.2011 Judgment delivered on: 08.04.2011 MAT.APP.52/2009 Smt.Kavita ……Appellant Through: Mr.S.K.Bhalla, Adv. Vs. Shri Rakesh Raman ……Respondent. Through: Mr.V. K. Khurana, Adv. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR 1. Whether the Reporters of local papers may Yes be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? KAILASH GAMBHIR, J. * 1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge the MAT.APP.52/2009 Page 2 of 42 judgment and decree dated 02.05.2009 whereby the petition filed by the respondent for divorce under Sections 13(1) (ia) and (ib) of the Hindu Marriage Act was allowed by the learned trial court in favour of the respondent and against the appellant. 2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 16.4.94 in Delhi according to Hindu rites and ceremonies. It is the case of the respondent husband that the appellant wife started harassing him on one pretext or the other like demand for a separate residence, getting her pregnancy aborted without the consent of the respondent, alleging that her life has been ruined by marrying a simple clerk and other such imputations. It was also the case of the respondent that the appellant used to leave the matrimonial home time and again and hassled by the conduct of the appellant, the respondent filed a petition for divorce on the ground of cruelty and desertion which vide judgment and decree dated 2.5.09 was MAT.APP.52/2009 Page 3 of 42 granted in favour of the respondent. Feeling aggrieved with the same, the appellant has preferred the present appeal. 3. Assailing the finding of the learned trial court in para-15 of the impugned judgment, Mr.Bhalla, learned counsel for the appellant submitted that the civil suit referred to in the said para i.e. Ex.PW-1/A filed by the respondent for mandatory injunction was wrongly taken into consideration by the learned trial court as it was filed by the respondent just to create an evidence in his favour, as in the said suit the appellant was never served with the notice/summon and no evidence was produced by the respondent before the trial court to prove the fact that the appellant was served with the notice or had appeared in the matter. Assailing the finding of the learned trial court in para-16 of the impugned judgment, Mr.Bhalla stated that the order dated 11.06.2003 Ex.PW-1/C passed by the learned Magistrate in the criminal complaint filed by the appellant under Section 323/324/34 IPC is still under challenge before this Court in the petition under Section 482 Cr.P.C. filed by the appellant being MAT.APP.52/2009 Page 4 of 42 Crl.M.C.No.696/2010 challenging the order of the learned trial court dismissing the application moved by the appellant under Section 319 Cr.P.C. to seek re-trial of the respondent. Counsel, however, admitted the fact that the petition under Section 482 Cr.P.C. was filed by the appellant after the passing of the impugned judgment. Counsel also admitted that even the order of the learned Magistrate came to be passed after the passing of the impugned judgment. The contention of counsel for the appellant was that this order dated 11.06.2003 has not attained finality yet. 4. So far the institution of Kalandra Ex.PW-1/D dated 17.06.1999 by the appellant is concerned, as referred to in para-16 of the impugned judgment, counsel submitted that the appellant was well within her right to lodge/institute the Kalandara as the respondent, his father and brother came to the parental house of the appellant and committed the act of breach of peace and created a scene at that place, against which the police had taken action. Counsel thus submitted that the appellant-wife committed no wrong in lodging the MAT.APP.52/2009 Page 5 of 42 said complaint against the respondent and the said accomplices. Counsel also submitted that the said kalandara proceedings were dropped by the Magistrate on 12.7.2000 on the technical ground that the Magistrate had failed to take a decision within the mandatory period of six months from the date of registration of the kalandara and therefore for the said dropping of the kalandara proceedings no fault can be attributed to the appellant. Counsel further submitted that the proceedings against the respondent and his family members are still pending trial under Section 498-A IPC in the court of Smt. Twinkle Wadhwan, M.M. and therefore even if the respondent and his family members were discharged under Section 406 of the IPC on 13.9.2000, the same would not have the effect of absolving them for the acts of cruelty committed by them. Counsel also submitted that simply because of the fact that there was acquittal of the respondent and his family members in a criminal case, that would not lead to the conclusion that an act of cruelty was committed by the appellant in getting the FIR registered against the MAT.APP.52/2009 Page 6 of 42 respondent and his family members as it is the right given to a citizen under the law that whenever any criminal act is committed by the other party, to take recourse to filing of a compliant. Counsel also submitted that the learned trial court failed to appreciate the dictum of law laid down by this Court in Krishan Kumar Vs. Shankari II (2007) DMC 367, on the wrong analogy that filing of more criminal cases by the wife will amount to cruelty unlike in the case of Krishan Kumar (supra) where there was only one criminal case instituted by the wife against her husband. 5. Assailing the finding of the learned trial court in para 18 of the impugned judgment where it has held that the appellant said that her life was ruined by marrying a clerk and it caused cruelty to the respondent, the counsel submitted that the respondent failed to prove that any such utterances were made by the appellant. The contention of the counsel was that no independent witness was produced by the respondent to prove that any such allegation was leveled by the appellant against the respondent. Counsel also submitted MAT.APP.52/2009 Page 7 of 42 that in the written statement, this allegation has been duly refuted by the appellant. Counsel also submitted that the learned trial court wrongly gave weightage to the evidence of the respondent while ignoring the evidence of the appellant. The contention of the counsel was that if there is an evidence of one party against the other party i.e. oath vs. oath then in the absence of any corroboration, the evidence of one party cannot be accepted over the other. Further assailing the correctness of the finding given by the learned trial court in para 19 of the impugned judgment, the counsel submitted that the learned trial court has not given the details of the documentary evidence in the said para based on which the court made the observation that it is not the quantity but the quality of the witnesses which is to be weighed. Counsel further submitted that the documentary evidence which was placed on record by the respondent was manipulated by him and the same was self serving evidence and therefore the learned trial court ought not to have placed any reliance on MAT.APP.52/2009 Page 8 of 42 such manipulative and self serving documentary evidence placed on record by the respondent. 6. Counsel for the appellant further submitted that the respondent admittedly failed to pay the amount of maintenance as granted by the learned trial court despite the grant of decree under Section 18 of the Hindu Adoption and Maintenance Act but this fact was not considered by the learned trial court which fact would clearly prove that the respondent husband was trying to take advantage of his own wrongs and therefore he was not entitled to the grant of decree of divorce in terms of Section 23(1) of the Hindu Marriage Act. Counsel further submitted that the learned trial court in the said case under Section 18 of the Hindu Adoption and Maintenance Act vide judgment dated 31.10.2002 took a view that the appellant in that case was able to show in her evidence that the respondent had illicit relationship with another woman and which fact became a cause of irritation between the parties and due to which the appellant was forced to leave her matrimonial house. The MAT.APP.52/2009 Page 9 of 42 contention of the counsel was that the said finding of the court in the Hindu Adoption & Maintenance Case has a binding effect in terms of Section 11 of CP.C and such an observation in the judgment in a case between the parties is also a relevant fact under Section 6 & 13 of the Indian Evidence Act. Counsel for the appellant in this regard invited attention of this court to paras 22, 33 & 34 of the judgment dated 31.10.2002 and submitted that perusal of the said paras would clearly reveal that the conduct of the respondent is out of bounds of the expected and reasonable conduct and based on the said observations of the court, he was not entitled to the grant of decree of divorce. Counsel further submitted that the appellant had also proved on record before the trial court that the respondent failed to pay the maintenance amount despite repeated applications moved by her before the concerned court in Section 18 proceedings and this deliberate act on the part of the respondent in not paying the maintenance amount even despite directions given by the maintenance court would clearly demonstrate the mala fide MAT.APP.52/2009 Page 10 of 42 conduct of the respondent who wanted to pressurize the appellant to succumb to his dictates and to come under pressure to agree for divorce. Counsel also submitted that the appellant had placed on record the relevant order dated 15.04.2008 of the said court before the trial court by which direction for increase in the maintenance amount to Rs.4,000/- along with direction to clear the arrears of maintenance was given. Counsel also submitted that the judgment of the Apex Court cited by the appellant in the case of Hirachand Srinivas Managaonkar Vs. Sunanda (2001) 4 SCC 125 was ignored by the learned trial court where the Apex Court held that non-payment of maintenance would lead to striking off the defence of the petitioner seeking divorce. Counsel also submitted that a separate application was moved by the appellant before the trial court under Section 24 of the Hindu Marriage Act but no maintenance under the said provision was granted by the court in favour of the appellant on the ground that already an interim maintenance was allowed in her favour by the other court under Section MAT.APP.52/2009 Page 11 of 42 18 of the Hindu Adoption and Maintenance Act proceedings. Counsel also submitted that the appellant had also moved three applications for dismissal of the divorce petition filed by the respondent on account of persistent defaults committed by him in paying the maintenance amount under Section 18 proceedings. (1st application dated 19.04.07 at page 731, 2nd application dated 13.7.07 at page 739 and the 3rd application dated 7.05.08 at page 759). Counsel also submitted that the conduct of the respondent is apparently offending even before this court as he had not been timely paying the maintenance amount to the appellant. 7. Counsel further submitted that the appellant has always been ready and willing to join back the company of the respondent and this fact can be borne out from the orders dated 05.10.2004, 08.10.2004 and 10.11.2008 passed by the learned trial court. Counsel further submitted that even now also the appellant is prepared to forgive the respondent for his past misconduct and can join the company of the respondent. MAT.APP.52/2009 Page 12 of 42 8. Mr.Khurana, learned counsel appearing for the respondent opposing the present appeal submitted that a number of false and vexatious complaints were lodged by the appellant against the respondent and his family members with the sole object to unnecessarily harass them due to which the respondent and his family members had to appear before various authorities. In so far as the complaint made by the appellant under Section 498-A/406 IPC is concerned, the respondent, his parents and his brother were arrested. Counsel also stated that cancellation of bail of the brother of the appellant was sought by the appellant when he was yet to be released from Tihar Jail after the grant of bail to him by the Court vide order dated 18.12.1998. Counsel further submitted that the appellant went to the extent of assailing the dismissal of cancellation order by way of filing a revision petition before the Sessions Court. Counsel also submitted that the appellant has filed a criminal complaint against the respondent invoking the provisions of the Domestic Violence Act, besides filing a civil suit for recovery of the dowry MAT.APP.52/2009 Page 13 of 42 articles. Counsel also submitted that for all these the respondent had proved on record various orders passed by the respective courts and also all these acts were committed by the appellant after 29.11.1998 from which date the parties have been living separately. Counsel also submitted that by filing a petition under Section 482 Cr.P.C. by the appellant challenging the order passed by the learned trial court on the application of the appellant moved by her under Section 319 Cr.P.C. would further show that the appellant was still chasing the respondent with the sole motive to harass him and to cause mental agony and tension to him. Counsel also submitted that the spate of criminal complaints filed by the appellant would clearly show that the offer made by her before the learned trial court as well as before this Court of joining back the company of the respondent was false and contrary to her conduct. Counsel for the respondent also submitted that the complaint lodged by the appellant which led to the registration of a Kalandara under Section 107/150 Cr.P.C. and proved on record as Ex.PW-1/D is based on MAT.APP.52/2009 Page 14 of 42 entirely different facts than what has been represented by the counsel for the appellant before this Court. Counsel also submitted that with the lodging of all these complaints by the appellant the previous acts of cruelty committed by the appellant would also get revived in view of the settled legal position. 9. Counsel for the respondent further submitted that the appellant failed to cross-examine the respondent to refute the statement given by him in his examination-in-chief stating that the appellant used to taunt the respondent by saying that her life was ruined by marrying a clerk. Counsel thus stated that the learned trial court in para-18 of the impugned judgment has correctly observed that such taunts of the appellant caused cruelty to the respondent. 10. Explaining the conduct of the respondent on the aspect of maintenance, counsel submitted that no order under Section 24 of the Hindu Marriage Act was passed by the learned trial court and, therefore, the appellant could not have any grievance so far the non-payment of maintenance MAT.APP.52/2009 Page 15 of 42 amount in the related proceedings filed by the appellant under Section 18 of the Hindu Adoption and Maintenance Act was concerned. Counsel for the respondent also submitted that the learned trial court in the execution proceedings had directed attachment of the salary of the respondent and the maintenance amount from the salary of the respondent has already been deducted. Counsel also submitted that the respondent has also cleared/paid the upto-date amount of maintenance to the appellant and, therefore, no fault can be found by this Court so far the payment of maintenance amount by the respondent is concerned. Counsel also submitted that all the three applications filed by the appellant before the learned trial court seeking dismissal of the case of the petitioner or striking off his defence were dismissed by the court and those orders were not challenged by the appellant and thus attained finality. Counsel thus stated that the respondent cannot be accused of not paying the maintenance amount to the appellant. Counsel also submitted that as per the deposition of RW-2, father of the appellant, he MAT.APP.52/2009 Page 16 of 42 has admitted the fact that the appellant was getting the maintenance amount from the salary of the respondent as per the orders of the court. 11. Counsel for the respondent also submitted that the observation made by the learned trial court in para 22 in Section 18 proceedings judgment dated 31.10.2002 cannot have any binding effect and the said observations cannot be treated as final between the parties. The contention of the counsel for the respondent was that the principle of res judicata will not be attracted because the learned court in the said case was dealing with an entirely different subject matter, being concerned with the limited question of grant of maintenance to the appellant and any observation made by the learned trial court in the said order cannot be treated as res judicata between the parties. Counsel thus stated that in the impugned judgment, the learned trial court has correctly dealt with the issue on this aspect. Counsel also submitted that the appellant failed to prove any kind of illicit relationship of the respondent as alleged with a lady named MAT.APP.52/2009 Page 17 of 42 Pinki in the present proceedings and therefore such serious allegations leveled by the appellant in itself amounts to causing cruelty upon the respondent husband. 12. I have heard learned counsel for the parties at considerable length and taken into consideration the contentions raised by them and have also gone through the records of the case. 13. The respondent-husband had filed a divorce petition on the ground of cruelty and desertion as envisaged under Section 13(1) (ia) and 13(1) (ib) of the Hindu Marriage Act, 1955 and his petition was allowed by the learned trial court on both the grounds vide judgment dated 2.5.2009. 14. So far the decree passed by the learned trial court on the ground of desertion is concerned, learned counsel for the respondent very fairly conceded to the fact that the impugned judgment cannot sustain on account of the fact that the respondent failed to prove on record the ground of desertion by satisfying the necessary ingredients of Section 13 (1) (ib) of the Hindu Marriage Act. It is a settled legal MAT.APP.52/2009 Page 18 of 42 position that to claim a decree on the ground of desertion so far the deserting spouse is concerned, two essential conditions required to be proved are (i) factum of separation and (ii) intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two ingredients are essential so far the deserted spouse is concerned i.e. (i) absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The learned trial court has granted the decree of divorce on the ground of desertion in favour of the respondent only due to the fact that the appellant did not give any cogent ground to desert the respondent and thereafter of not returning back. The learned trial court failed to deliberate on issue No.2 in a proper perspective and has given the said finding in favour of the respondent without appreciating the said essentials required to be proved before granting a decree of divorce on the ground of desertion. It is a settled legal position that the onus is on the petitioner to not merely prove the factum of MAT.APP.52/2009 Page 19 of 42 desertion on the part of the deserting spouse but also to establish the fact that the said desertion on the part of the deserting spouse is with a view to bring co-habitation permanently to an end. Mere fact that the appellant did not allow the respondent to enter in his own house on 29.11.1998 would not prove the fact that she had the intention to bring the cohabitation permanently to an end. Thus, the findings of the learned trial court on issue No.2 are clearly perverse and illegal and, therefore, the decree granted by the learned trial court on the ground of desertion is hereby set aside. 15. The other ground, on which the learned trial court has granted the decree of divorce in favour of the respondent and against the appellant is the ground of cruelty as envisaged under Section 13(1) (ia) of the Hindu Marriage Act. Before I deal with the rival submissions of learned counsel for both the parties, it would be desirable to decipher the foundation on which the learned trial court granted the said decree on the ground of cruelty in favour of the respondent and against the appellant. The learned trial court did not MAT.APP.52/2009 Page 20 of 42 consider the allegations leveled by the respondent in paras 6,7,8,9 and 10 of the petition, as these paragraphs were found to be vague with no date, month and year of the incidents mentioned therein. The learned trial court also came to the conclusion that with the cohabitation of the parties till 29.11.1998 the respondent had condoned the acts of cruelty of the appellant-wife till the said date. The learned trial court then went on to examine the acts of cruelty committed by the appellant on or after 29.11.1998 and also revival of the previous acts of cruelty due to the said subsequent acts of cruelty committed by the appellant after 29.11.1998. The first act of cruelty committed by the appellant as per the finding of the learned trial court is that on 29.11.1998 the respondent was not allowed to enter his own house by the appellant which led to the filing of the civil suit for mandatory injunction on 01.12.1998 and such an act on the part of the appellant not permitting the respondent to enter in his own house has been treated as an act of cruelty on the part of the appellant. Filing of various complaints by the appellant and MAT.APP.52/2009 Page 21 of 42 also her taking other legal remedies were also taken as cruel acts committed by the appellant towards the respondent. Filing of complaint by the appellant under Sections 323/324/34 IPC against the respondent, his parents and his brother on 17.03.1999; registration of a Kalandra under Section 107/150 Cr.P.C. on 17.6.99 at the instance of the appellant against the respondent, his brother and father; registration of an FIR at the instance of the appellant against the respondent and his family members under Sections 498A/406 IPC; filing of an application by the appellant to seek cancellation of bail of the brother of the appellant while he was still in custody and filing of a revision petition against the dismissal of such an application; all these acts of filing of complaints and registration of cases by the appellant were treated by the learned trial court as serious acts of cruelty perpetrated by the appellant. The learned trial court also held that such acts of cruelty committed by the appellant also revived the previous acts of cruelty committed by her. The learned trial court also distinguished the judgment of this MAT.APP.52/2009 Page 22 of 42 Court in Krishan Kumar Vs. Shankri II (2007) DMC 367 Delhi on the analogy that in the said case there was only one criminal proceeding while in the present case there were many such cases filed by the appellant and also the fact that in the former case the revision petition against the order of discharge was allowed by the Sessions Court and in the facts of the present case no such revision was filed by the appellant. The learned trial court also found that the taunt of the appellant that her life was ruined by her family by marrying her with a clerk was an act of cruelty committed by