MAT App.No.82/2007 Page 1 of 48 * HIGH COURT OF DELHI : NEW DELHI MAT App. No. 82 of 2007 % Judgment reserved on: 20th August, 2008 Judgment delivered on:20th October , 2008 Lata Verma w/o Sh.Jayant Verma D/o Sh.Gajey Singh Ruhela, R/o 4905, Gali No.1 (Masjid Wali Gali) Old Seelam Pur, Delhi. ….Appellant Through: Mr.Bhopal Singh, Adv. along with Appellant in person. Versus Jayant Verma S/o Sh.Suresh Chand Verma R/o H.No.3592, Gali Hakim Wali, Darya Ganj, New Delhi-110002. .…Respondent Through: Mr.R.L.Dhingra, Adv. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MAT App.No.82/2007 Page 2 of 48 V.B.Gupta, J. The present appeal under Section 28 of the Hindu Marriage Act, 1955 (for short as „Act”) has been filed by the appellant/wife, against the judgment/order dated 11th September, 2007 passed by Ms.Anju Bajaj Chyandna, ADJ, Delhi wherein the Trial Court has allowed the petition of respondent and the marriage between the parties was dissolved by a decree of divorce under Section 13(1)(ia) of the Act. 2. The brief facts of the case are that marriage between the appellant and respondent was solemnized according to Hindu rite and ceremonies on 9th December, 1997 at Delhi. From this wedlock, one male child, Rohan was born to the parties on 24th September, 1998 who is in the custody of the appellant. 3. According to the respondent, appellant was treated with love and affection at the matrimonial home and as the appellant was working woman, MAT App.No.82/2007 Page 3 of 48 respondent‟s mother helped the appellant so that she could discharge her official duties properly. It is alleged that appellant was disrespectful towards the respondent and his parents so much so that she was abusive and even slapped the mother of the respondent and insulted her in the presence of the relatives. The respondent and his family tolerated the cruel acts of the respondent with the hope that appellant would improve but the behavior of the appellant continued to deteriorate. The father of the appellant was informed about this behavior and was requested to advise his daughter but despite the efforts of her father, appellant continued with her cruel acts. 4. On 15th April, 1998, appellant left the matrimonial home and went to her parental home. 5. On 16th May, 1998, appellant was brought in the house of the respondent by her father and appellant‟s father gave written assurance that respondent and his MAT App.No.82/2007 Page 4 of 48 parents would not be responsible for the acts of the appellant. 6. On 18th May, 1998, appellant left the house for her office but she did not return till 6.30 p.m. in the evening. As the appellant could not be traced, respondent lodged a complaint with Police Station Darya Ganj. The police authorities later on informed that appellant was staying with her parents at Seelampur. The respondent went to the house of appellant‟s parents on 19th may, 1998 but the appellant refused to come back. Due to persistent efforts of relatives, appellant came to the matrimonial home on 20th September, 1998 and stayed till 27th September, 2008. 7. On 28th September, 1998 while leaving the matrimonial home, the appellant gave undertaking in writing that she was leaving on her own. Thereafter the appellant came to the house of the respondent on MAT App.No.82/2007 Page 5 of 48 23rd July, 1999 and again left on the next date, that is on 24th July, 1999. 8. The respondent received summons from Crime Against women Cell on 27th July, 1999 as appellant had filed complaint against him. The respondent explained them vide letter to the effect that appellant came back from her office on 24th July, 1999 and took away the 10 months old child. The respondent on his visit to Punjab National Bank came to know that appellant has closed joint account of the parties bearing No.6554, without the consent of the respondent, on 27th July, 1999 and also withdrew money from her Saving Account No.4802. The respondent on checking the suitcase of the appellant came to know that jewelery items were also missing. The entire matter was reported to Police Station Darya Ganj. 9. It is further stated that on 5th August, 1999, respondent received summons from Nari Raksha Samiti, Raj Niwas Marg and despite efforts, the matter MAT App.No.82/2007 Page 6 of 48 could not be reconciled. The appellant insisted that respondent should leave his parents and reside with her separately and despite sincere request of the respondent, appellant did not agree to live together. On 9th July, 2000, respondent visited the appellant‟s parental home in order to persuade her to come back but the appellant insisted for living separately and refused to come. 10. On the other hand, it is alleged by the appellant that parents of the appellant spent Rs.3 lacs on her marriage. After three days of the marriage, when the appellant‟s parents came to the matrimonial home to take the appellant to their home as per tradition, the parents of the respondent demanded Rs.20,000/- as dowry. They harassed the appellant and never allowed her to visit her parents. Several oral complaints were made by the appellant to the Police Station Darya Ganj but nothing was done. MAT App.No.82/2007 Page 7 of 48 11. On 24th July, 1999, appellant expressed her desire to go to her parental home but she was beaten by the respondent and his parents and the child was forcibly taken from the custody of the appellant. The appellant made complaint to Police Station Darya Ganj on 24th July, 1999 and on the basis of the same, police person reached there and provided the custody of the minor child to the appellant. Since then, appellant has been residing separately. 12. With respect to the incident dated 15th April, 1998, it is admitted that appellant had gone to her parents house since respondent‟s parents denied medical expenses to her and appellant had to come to her parental home to get financial help. When the appellant went back to her matrimonial home with her father, the appellant‟s father was compelled to write and give assurance and this was put as a condition to accept the appellant. MAT App.No.82/2007 Page 8 of 48 13. Further, the appellant, had gone to her parental home for medical check up on 18th May, 1998 and therefore she got late. The respondent was informed and in fact his permission was taken and the complaint was falsely lodged. 14. After the birth of the child on 24th September, 1998, appellant was threatened by her in-laws that if dowry amount of Rs.20,000/- is not paid, the child would be sold anywhere. Thereafter, appellant left the matrimonial home by giving an undertaking to live separately. 15. It is denied that appellant was ever treated with love or affection and the allegations of misbehavior of abusive or violent attitude of the appellant have also been denied. 16. It is further denied that appellant has taken away jewelery items as detailed and it is asserted that two sets and golden ring are still with the in-laws. The MAT App.No.82/2007 Page 9 of 48 complaint dated 30th July, 1999 is stated to be incorrect. 17. The respondent filed replication reiterating and reasserting the averments made in the petition and controverting those of the written statement. 18. It has been contended by learned counsel for the appellant that the Trial Court has failed to consider that the appellant was aggrieved since she was being mal-treated by the respondent and his parents and they have forced the appellant to leave the matrimonial home on 28th September, 1998 just after three days of delivery of the male child. 19. The Trial Court also failed to appreciate that the respondent and his parents, forced the appellant to give in writing the document Ex.PW-1/4, that she was leaving the matrimonial home on her own accord with the ulterior motive to use the said document against her. The said document does not contain the signature MAT App.No.82/2007 Page 10 of 48 of appellant, but the same has been forged by the respondent and his parents. 20. It is further contended that as per case of respondent, the appellant abused the respondent and his mother many times and even, sometimes she slapped, the mother of the respondent, but during evidence, the respondent has deposed that the appellant slapped PW-3, Smt. Parvati Verma, in the presence of his relatives, friends of his in-laws of his married sister, but on the contrary PW-3 Parvati Verma stated in her affidavit that the appellant has slapped her on 12.04.1998, but during cross-examination, she has deposed that she was slapped in the month of March, 1998 at about 7 p.m. in the presence of her husband. However, PW-10 Suresh Verma i.e. father of the respondent, has deposed that in the month of March, 1998 the appellant has slapped PW-3 Parvati Verma in day time, but he was not available there and the said fact was told to him by her wife i.e. Parvati Verma. MAT App.No.82/2007 Page 11 of 48 21. It is further contended that PW-3 Parvati Verma, i.e., mother-in-law of the appellant has stated that the father of appellant has not written the assurance Ex.PW-1/1 on 18th May, 1998, because he had no spectacles at that time and that assurance was prepared later on by Gajey Singh Verma, when all the three persons, visited her house and had put their signature. The said document has been signed by one witness, i.e. Dr. Ramesh Chand, but the said Dr.Ramesh Chand has not been examined as a witness to prove the said document. 22. Other contention is that the Trial Court has failed to take note of the fact that complaint case of the appellant under Sections 498A/406/34 IPC is still pending trial before the Magistrate and during the pendency of said complaint case, the impugned judgment/order passed by the Trial Court is premature and liable to be set aside. MAT App.No.82/2007 Page 12 of 48 23. It is further contended that the Trial Court has failed to appreciate that on 23rd July, 1999, the respondent and his parents have beaten the appellant, because she wanted to go to her parental home with her minor child and when she requested to allow her to go her parental home and demanded the jewelleries, the respondent and his parents had beaten the appellant badly and locked her in the room and forcibly snatched the minor child. The appellant on 24th July, 1999, somehow escaped and made a complaint to the S.H.O., P.S. Daryaganj and on the intervention of the concerned police official, the custody of minor child was restored to the appellant. 24. Thus, there are many infirmities and contradictions in evidence produced by the respondent and other witnesses. Therefore, in view of the above facts and circumstances, the judgment passed by the Trial Court is liable to be set aside. MAT App.No.82/2007 Page 13 of 48 25. Learned counsel for the appellant has relied upon the decisions in Ravinder Kumar v. Smt. Nirmal (1996) Matrimonial Law Reporter 92, H.S. Uma v. G.K.Sumanth Arya, II (1993) DMC 174 and Urmila Devi v. Deepak Kumar Vyas, II (1999) DMC 52 in support of its contentions. 26. On the other hand, it is contended by learned counsel for the respondent that there are various contradictions in the pleadings and the evidence of the appellant. The appellant in her written statement has not specifically replied to the pleadings of the respondent in his petition and on the other hand, she has tried to set up her own case that there was demand of dowry on the part of the respondent and his parents and she was being harassed for bringing the balance of dowry demand of Rs.20,000/- 27. The appellant did not dispute the assurance given by her father and by herself though she has stated that her father was compelled to write the assurance MAT App.No.82/2007 Page 14 of 48 Ex.PW1/1, when her father appeared as a witness he denied having executed Ex.PW1/1 and stated the same is a fabricated document. 28. The appellant has also given contradictory statement about the dowry demand while stating sometimes as Rs.10,000/- and sometimes that Rs.20,000/- were demanded. 29. The appellant also admitted that she withdrew the amount from the joint account without the knowledge of the respondent and also found that some jewellery was missing. 30. The other contention is that after receiving the summons from Women Cell, the respondent offered to take appellant to her matrimonial home whereas, appellant insisted that he should leave his parents. 31. Another contention is that RW-2 who is the maternal uncle of appellant has admittedly proposed his daughter‟s for marriage with respondent and respondent turned down that proposal. Under these circumstances, MAT App.No.82/2007 Page 15 of 48 there was no question that this witness would come to the residence of respondent. 32. Thus, the respondent has proved all the allegations of cruelty against the appellant. 33. As regards to the contention of pendency of criminal proceedings, in P. Swaroopa Rani Vs. M. Hari Narayana @ Hari Babu 2008 (3) SCALE 501, the Apex Court has observed as under; “It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.” 34. A constitution bench of the Apex Court, dealing with the same question, in Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr, 2005 (2) RCR (Criminal) 178 has observed as under; “Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a MAT App.No.82/2007 Page 16 of 48 criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras, AIR 1954 SC 397 give a complete answer to the problem posed: "As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; MAT App.No.82/2007 Page 17 of 48 that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.” 35. In M. Krishnan v. Vijay Singh & Anr., JT 2001 (8) SC 540, the Apex Court has observed as under; “Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of." 36. Thus, in view of the above decisions, this contention of appellant is rejected. 37. The following acts in the nature of cruelty are in question in the present case:- (i) The appellant was disrespectful towards respondent and his parents so much so that she slapped the mother of the respondent and insulted her in the presence of others. MAT App.No.82/2007 Page 18 of 48 (ii) The misconduct of the appellant continued despite the tolerance of the respondent and his family members and on 15th April, 1998 appellant left the house and was brought back on 16th May, 1998 by her father and written assurance was given by the father of the appellant for her good behavior. (iii) On 18th May, 1998 itself appellant again left the house for office but did not return. Subsequently, it was revealed that appellant had gone to her parental home. The appellant refused to come back to the matrimonial home on 19th May, 1998. (iv) The appellant came back on 20th September, 1998, gave birth to a child on 24th September, 1998 and again left the matrimonial home on 28th September, 1998 by giving an undertaking that she is voluntarily leaving the matrimonial home. MAT App.No.82/2007 Page 19 of 48 (v) Lastly the appellant came on 23rd July, 1999 and left on the next date and thereafter filed complaint before Crime against Women Cell. It was also discovered that appellant withdrew money from the joint account of the parties. The appellant finally refused to come back and insisted to get separate from her in-laws and parties continued to live separately. 38. Cruelty is a ground for divorce under Section 13 of the Act and it provides, so far as is material; “13. Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) x x x x x (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) to (vii) x x x x x x Explanation- x x x x x x” MAT App.No.82/2007 Page 20 of 48 39. The word 'cruelty' has not been defined in the Hindu Marriage Act. D. Tolstoy in his celebrated book "The Law and Practice of Divorce and Matrimonial Causes" (Sixth Edition, p. 61) defined cruelty in these words: “Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.” 40. The Shorter Oxford Dictionary defines “cruelty” as “the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness”. 41. The term "mental cruelty" has been defined in Black's Law Dictionary [8th Edition, 2004] as under: “Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.” MAT App.No.82/2007 Page 21 of 48 42. The concept of cruelty has been summarized in Halsbury's Laws of England [Vol.13, 4th Edition, Para 1269] as under: “The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance MAT App.No.82/2007 Page 22 of 48 and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.” 43. In 24 American Jurisprudence 2d, the term "mental cruelty" has been defined as under: “Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.” 44. In Dr. N.G. Dastane v. S. Dastane, AIR 1975 SC 1534, the Apex Court has observed as under; "...whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the Respondent". MAT App.No.82/2007 Page 23 of 48 45. In the case of Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, the Apex Court has observed as under; “Section 13(1)(ia) uses the word “treated the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of 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 to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether 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. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty MAT App.No.82/2007 Page 24 of 48 will be established if the conduct itself is proved or admitted.” The Court further observed; “The context and the set up in which the word “cruelty” has been used in the Section seems to us, that intention is not a necessary element in cruelty. That the word has to be understood in the ordinary sense of the term