Kanta v. Mithlesh Kumar Jha

* IN THE HIGH COURT OF DELHI AT NEW DELHI Jud2ment Reserved on: October 27, 2016 % Judsment Delivered on: November 03, 2016 + MAT.APP.(F.C.^ 15/2014 KANTA Appellant Representedby: Mr.PankulNagpal,Adv. versus MITHLESH KUMAR JHA Respondent Represented by: Ms.Anu Narula, Advocate with Mr.R.K.Thakur, Mr.B.Mishra, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI PRATIBHA RANI. J.

¶1This appeal is directed against the judgment and decree dated January 04, 2014 passed by learned Judge Family Court whereby the respondent/husband's petition under Section 13(l)(ia) & (ib) of Hindu MarriageAct, 1955 seekingdissolutionof the marriagehas been allowed.

¶2The appellant/wifegot married to respondent/husbandon April 28, 2003 at Begusarai in Bihar according to Hindu rites and customs. After the solemnization of marriage they started residing at Delhi where the respondent/husbandwas carryingonhis business.As per the husbandwhen the respondent/husbandaskedher choicefor honeymoondestinationshe not only broke her banglesbut also removedher ring and cried. The marriage was consummatedonly for about 8 months of their marriage. Husband claims that since inceptionthe matrimoniallife of the parties was passing throughturbulence.They startedresidingseparatelyw.e.f.April 30, 2006.

¶3Beforebecomingadversaryto each other in HMA PetitionNo.76/09, MAT.APP. (F.C.)15/2014 Page I ofII the parties who are well educated did spare a thought for an amicable solution to their matrimonial issues. This is evident from HMA Petition No.714/2007 (Ex. PW-l/C) filed by the parties on December 17, 2007 seekingdissolutionoftheirmarriageby mutualconsent.Memo ofpartiesof the petition under Section 13-B(1) recorded the address of the respondent/husbandas 70, ManjilApartment,Sector-9,Dwarkaand that of the wife as RZ G-21, Devkunj,Raj Nagar, Palam,New Delhi. The fact that partieswere residingin Delhi but at differentaddressis an indicationofthe fact that there was no cohabitation. At the stage of second motion, despite receiving ?4 lakhs in the accountof her firm and seekingwaiver of statutory period, she did not appear to make statementbefore the Family Court at the stage of second motion. The legal consequence was dismissal of the petition HMA No.714/2007 under Section 13-B(1) of Hindu Marriage Act.

¶4Since the parties failed to reconcile their differences and continued living separately the husband preferred HMA No.76/2009 for dissolution of their marriage on the ground envisaged under Section 13(l)(ia) & (ib) of Hindu Marriage Act, 1955.

¶5The divorce petition was contested by the appellant/wife claiming herselfto be a victimon accountof her harassmentby her husbandand in-laws for non-fulfilmentof dowry demand.The reasonfor non appearanceat the stage of secondmotionpleaded by her was that at that time the husband was requiredto giveher ?40 lakhsand one housewhereashehad givenonly ?4 lakhs in the account of her firm.

¶6After considering the testimony of the parties who have examined themselvesto prove their respectivepleas, the learnedJudge Family Court allowedthe petitioninter-aliafor the followingreasons:-

(i) The wife conceived in October, 2004 i.e. after about VA years of MAT.APP. (F.C.)15/2014 Page2ofII marriagebut took a unilateraldecisionto go for abortion.

(ii) The husbandfulfilledthe desire of his wife by purchasinga flat but she even did not sit with him for puja performed for 'Greh Pravesh' ceremony. Ratherinfront ofguestswhileabusingherhusbandsaidthat she was not his wife.

(iii) In February, 2005 on her return from Bangaloreto Delhi, she was pregnant.The husbandsuspectedthathe was notthe biologicalfatherofthe child. He wanted the DNA test to be conducted. Again the wife without the knowledge of the husband had gone for abortion.

(iv) In November, 2005 when the parents of the husband were at their place, the wife refused to join them for dinner and even told her mother-in-law that the respondent/husband was impotent and he had ruined her life.

(v) Despite the husband paying ? 4 lakhs through cheque at the stage of second motion in addition to the payment of ?5 lakhs made at the stage of first motion, she preferred not to appear before the Court for making the statement which resulted in dismissal of the petition on April 01, 2009. The parties were living separately since April 30, 2006 and there had been no cohabitationsince then. Despite that on September03, 2008 the wife visited Dr.LalPathLab. at Dwarkaforpregnancytest andtestedpositive.

(vi) While they were living togetherat Dwarka in a flat on 6"" floor the wife used to threatento commitsuicideby jumpingfrom the 6^ floor. Via the allegations were made against the husband that he had developed relationship with Sangeeta, sister of his wife which remained unsubstantiated.

(vii) The partieshad been livingseparatelysince April 30, 2006 and there had been no cohabitation since then. The harassment on account of the dowry demand was not proved by wife. The animus deserendi being MAT.APP. (F.C.)15/2014 Page3of11 >3 established, the ground of desertion was also held to be proved.

¶7Learned counsel for the appellant/wifehas questioned the legality of the impugned judgement on facts and on law both. In the written submissions learned counsel for the appellant while penning the profile of the wife, described her as highly qualified simple lady from a small town Begusarai in Bihar. She is MBA/PGDM M.Sc. B.Sc. She is a business woman carrying on the business of Project Management and Execution Company and is well settled in the city life. While admitting the factum of the marriage between the parties on April 28, 2003 in Bihar. It has been contended that she was harassed on account of non-fulfilment of dowry demand. After the marriage she was not even brought to Delhi. When ultimately she came to Delhi in November, 2003 and tried to settle in family life with her husband she was physically assaulted. When she got pregnant in October, 2003, her husband suspected her character alleging that he was not biologicalfatherof the child.Thephysicaland mentalstresssufferedby herresultedinto miscarriage.It has been furthercontendedthatin February, 2005 she again conceived. On her return from Bangalore, her husband asked her to get DNA test done for which she refused and got the child aborted without the consent or information to the respondent/husband. Learned counsel for the appellant contendedthat the wife was made Director of one of the Company by her husband. She was taken to the Court on the pretext of signing certain documents in order to get her out of the said company as various cheques have been issued and that her liability be discharged.Trustinghim, she appearedand made statementat the stage of first motion. She did not appear at the stage of second motion despiteshe being offered?40 lakhs as settlementamount by her husbandto get rid of her but later on backedout. The appellant/wifehas contendedthat she was MATAPP:(F.C.)15/2014 Page4of11 made sole proprietor of firm M/s Aripan Decor only on papers with no control on the business as the affairs were managed by her husband only. Her husband became more interested in her sister Sangeeta who was brought by him to Delhi and got admittedin interiordesigningcourse.She was also harassed on objecting to their intimacy. The appellant was shifted to a different accommodation on the pretext that the flat wherein they were residing was to be renovated. Learned counsel for the appellant/wifehas submittedthat the parties lived together till September20, 2010. She tested positive for pregnancy in September, 2008 at Dr.Lal Paths Lab as she was living with her husband and discharging all her matrimonial obligations. She had to .undergo abortion in 2008 also as her husband was casting aspersion on her character. She has even attended 'Janeu Sanskaar' of the nephew of her husband and still willing to live with him.

¶8While assailing the finding of learned Judge Family Court on the issue of crueltyand desertionit has been arguedthat the appellant/wifewas harassed and tortured physically as well mentally on non-fulfilmentof dowry demand. The fact that the husband was living in adulterywith the younger sister of the wife, which amountedto crueltyto the wife, has not been properly appreciatedby the learned Judge Family Court. Learned counsel for the appellant/wife submitted that since no witness has been examinedto prove crueltyor any humiliationbeing caused by the wife in presenceof hisparents/relations,the impugnedorderis liableto be set aside.

¶9On perusal of trial Court record we notice that the contentions raised onbehalfofthe appellantare not inconsonancewithher pleas inthe written statement as well her testimony as RW-l. The appellant in her cross-examinationhas admittedthe followingfacts:

(i) Her father-in-lawand mother-in-laware well educated. They were MAT.APP. (F.C.)15/2014 Page5of11 professors in LNMU, Darbhanga.

(ii) Atthe time ofhermarriageshe was a graduate.Afterthe marriageher father-in-lawgother admittedforpostgraduationin MA(Sociology).

(iii) Therelationsbetweenthe partieswerecordialtillthe year2005.

(iv) Her younger sister Sangeeta was brought and got admitted in an interior designing course in Delhi.

(v) The firm Aripan Decor was having a current account with Axis Bank at Palam of which she was the sole proprietor and authorised to sign all the cheques for the firm and also withdraw the money.

(vi) She conceived thrice and each time the pregnancy was got terminated without the knowledge and consent of the husband.

(vii) The petition and the proceedings under Section 13-B(1) of the Hindu Marriage Act, 1955 have been signed by her. She also appeared before the Family Court for making statement at the stage of first motion as well at the stage of filing an application under Section 151 CPC for waiver of statutory period. She also appeared before the Court at the stage of second motion for seeking more time to further negotiate the terms of settlement between the parties.

(viii) She had filed the criminalcomplaintsonly after the husbandsought dissolutionof marriageonthe groundof crueltyand desertion.

(ix) No MOU to pay her ?40 lacs and a house was prepared while applying for divorce by mutual consent.

(x) No complaint against the husband was ever made for alleged adulterousrelationshipwith her youngersister Sangeeta.

(xi) Sangeeta continued staying with her in Delhi till 2009 i.e. even after the parties got separatedon April 30, 2006.

(xii) She had gone to Dr.Lal Path Lab, Dwarka for pregnancy test on MATAPP. (F.C.)15/2014 Page6of11 September 03, 2008 which tested positive,

¶10To appreciatethe submissionsmade by the appellant/wifebeforethis Court, we have carefully re-appreciated the entire evidence. It is an admitted fact that the marriage was solemnized in the year 2003. The first motion seeking dissolution of marriage by mutual consent was filed on December 17, 2007 which was registered as HMA No.714/2007.

¶11LCR of the first motion petition (HMA Petition No.714/2007) and second motion petition (HMA Petition No.251/2008) are also enclosed with LCR of HMA Petition No.76/2009 wherein the impugned judgment and decree has been passed which we have perused.

¶12While filing the first motion, the parties categorically pleaded in para 6 of the petition that they have been living separately since April 30, 2006. The petition was supported with the affidavit of the parties annexing their ID proofs. Rent agreement in respect of a separate accommodation taken by the appellant/wife on rent w.e.f. June 01, 2007 was also filed along with this petition. Statement of the parties was recorded by the learned ADJ on January 23, 2008. At the stage of first motion, statement of the appellant/wife before the Court is a detailed statement wherein she stated about the settlementof all matrimonialdisputes even qua maintenance-past, present and future, istridhan and alimony etc. with her husband. She specificallystated that her consent to file this petition ex. PWl/C was voluntarilygiven by her free from any pressure,force orcoercionfrom any comer. The concludinglines of her statementat the stage of first motion read as under: "I have made my statementvoluntarilyout of my free will and after due contemplationand understandingits implicationswithout any pressure, force or coercionfrom any comer."

¶13The proceedings dated January 23, 2008 in HMA No.714/2007 MAT.APP.(F.C.)15/2014 Page/of11 recorded by the Court reads as under: "HMA NO.714/2007

23.01.2008 Present: Both the petitioners inperson. Ms.Disha Arora, counsel for the petitioner no.1. Ms.Rekha Mishra, counsel for the petitioner no.2. Effortsfor reconciliation have failed at this stage. Petitioners are adamant to go for first motion. Let their statement be recorded. In view of the statement recorded of the petitioners on separate sheets who have duly been identified by their counsel, the petition U/s 13(B)(1) of HMA is accepted vide separate order announced of even date. No orders as to cost. File be consigned to Record Room. Sd/' Additional District Judge TisHazari, Delhi"

¶14The second motion petition bearing HMA Petition No.251/2008 was filed on May 14,2008. The application under Section 151 CPC seeking waiver of statutory period duly signed by both the parties and by their respectivecounselwas allowedvide order dated May 20, 2008. The matter was listed for recordingthe statementof the petitionerson May 30, 2008. Both the parties appeared before the Court with their counsel on that date. It was for the first time that petitionerno.2, the wife who is appellantbefore us, requested the Court that she wanted to reconsider the terms of settlement. Thereaftershepreferrednotto appearand apprisethe learnedADJaboutthe development,if any. This resultedin dismissalof the petitionno.251/2008 on April 01, 2009.

¶15The judicial record pertaining to first motion and second motion No.HMA No.714/2007& HMA No.251/2008falsify the contentionraised MAT.APP.(F.C.)15/2014 Page8ofII on behalf of the appellant/wife that she was taken to the Court by her husband on the false pretext that to get her out of the said Company she had to appear before the Court. Admittedly the appellant/wife is well qualified independently running her business in Delhi. The Court proceedings record the efforts by learned ADJ during reconciliation proceedings. Her request for adjournment to reconsider the terms of settlement clearly establishes that she knew the nature of relief claimed in the above petitions.

¶16Without entering into the controversy about the orally agreed terms of the settlement, failure to disclose the description of the property agreed to be transferred in her name as a condition for grant of divorce by mutual consent, her request to the Court to have a relook at the terms of the settlement without disclosing any of the above fact at that stage, is suggestive of the fact that there was no agreement to pay her ?40 lakhs alongwith a house by the husband. Thus, the reason given by her for non-appearance at the stage of second motion is an afterthought.

¶17The appellant/wife has alleged intimate relation between her younger sister and her husband. They have been residing separately since 2006 whereas her sister resided with her for 3-4 years even thereafter in her separate accommodation. She would not have kept her sister along with her had it been a case of her husband being in illicit relationship with her younger sister. She has failed to examine any witness to prove these allegations. Her admission that she filed the criminal cases against her husband and in-laws only after the divorce case was filed by her husband i.e. almost about five years of their marriage gives rise to an inference that she wanted her husband and in-laws to accede to her subsequent demand. She was married in a well educated family and her in-laws got her admitted for post-graduation to enhance her qualification, her husband established her as MAT.APP. (F.C.) 15/2014 Page9 of11 a businesswomen makingher the sole proprietor,her sisterwas broughtto Delhi and got admitted in a course in interior designing course proves otherwise.

¶18In the writtensubmissionsit is not disputedby the appellant/wifethat thrice she had gone for abortion without the knowledge or consent of her husband. Whether the first abortion was voluntary or involuntary, could have been established by filing the medical record or examining the doctor about the cause for such miscarriage/abortion. The appellant/wife preferred not to bring on record her prescriptions even for the year 2008 when the parties had already initiated litigation. The factum of the parties being living separately since April 30, 2006 duly admitted by her at the stage of filing first motion petition and second motion petition as well while making statement before the Court at the stage of first motion petition. A presumption arises to the correctness of the facts as recorded in the judicial order and negated the possibility of the husband being the biological father of the child when she tested positive on September 03, 2008.

¶19In the instant case, to seek divorce the husband had proved the following facts:-

(i) The wife threatened to commit suicide byjumping from the sixth floor.

(ii) She filed false criminal complaintsalleging harassment on accountof non-fulfilment of dowry demand against husband and in-laws.

(iii) Makingfalseallegationsagainstthe husbandof he being in adulterous relationship with her younger sister Sangeeta.

(iv) Repeatedly going for abortion without the consent and knowledge of the husband. MAT.APP. (F.C.) 15/2014 Page10ofII

(v) Though the parties had been living separatelyw.e.f. April 30, 2006 and had not cohabited,she testedpositivefor pregnancyin September,2008 and this time also she had gone for abortion.

(vi) To sustain the plea of desertion by the husband he had not only proved that the wife was living separately but also that there is animus deserendion the spouseand that he has not wilfullyconductedhimselfin a way which would furnish a reasonable ground for the wife to stay away from the matrimonial home.

¶20The concept of mental cruelty as illustrated by the Supreme Court in

(2007) 4 see 511 Samar Ghosh Vs. Java Ghosh and AIR 2013 SC 2176 K.Srinivas Rao vs. D.A.Deepa apply to the present case with equal force. Thus, while concurring with the finding of learned Judge, Family Court, we dismiss the instant appeal.

¶21No costs.

¶22TCR be sent back along with the copy of this order. NOVEMBER 03,2016 'Pg' (JUDGE) pradeepn^^rBog (JUDGE) MAT.APP. (F.C.)15/2014 Page II of11