Gopal Krishan Dua v. Rajni Dua & Anr

judgment: "32. ….. He was cross examined on 19.04.2011, 16.05.2011,

06.11.2012, 07.11.2012, 22.11.2012, 24.10.2013. Thereafter on one pretext or the other the respondent shyed away from subjecting himself to his cross examination and his cross examination was closed by order of the court and his efforts to reopen his cross examination by obtaining a favourable order from Hon'ble High Court could not succeed on account of his failure to abide by the directions of Hon'ble High Court in this regard in letter and spirit." It was submitted that the appellant was not given sufficient opportunity to establish his case, as his evidence was prematurely closed.

¶15Counsel for the wife urged that the husband's inability to prove the wild and reckless allegations constituted cruelty. Besides, submitted the learned counsel, the last instances of cruelty-physical and mental, were substantiated by convincing evidence. Therefore, he urged the court not to interfere with the findings and judgment of the Family Court. Analysis and Findings

¶16A combined reading of the order of this Court dated 06.07.2015 as well as the above extract show that despite giving several opportunities to make a representation, the appellant was only interested in prolonging the litigation and did not take the opportunity afforded by this court seriously. It was observed in the judgment of this court, dated 06.07.2015 as follows:

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" 10. The order dated 17.03.2015, the relevant portion whereof has been extracted hereon above, is clear as daylight. There can be no ambiguity or confusion about the terms on which the petitioner was granted one last opportunity to lead his evidence and cross examination. Admittedly, the petitioner has not availed the said opportunity. He did not pay in advance the aggregate costs of Rs.50,000/- before offering himself for cross-examination. The submission that the petitioner was under a bonafide belief that the earlier cheque of Rs.20,000/- had been encashed by the respondent/wife is untrue to the record. As noticed above, the cheque of Rs.20,000/- given to the respondent on 30.04.2013 had not been encashed on account of the same containing unwarranted writings at the back, and by subsequent order of 10.09.2013, the petitioner was instructed to bring another cheque, which he failed to do. While passing the order dated 17.03.2015, this Court was conscious of the fact that the earlier costs of Rs.35,000/- was outstanding, and this was so recorded in the order dated 17.03.2015. The petitioner was also conscious of this position and, therefore, did not come back to the court to submit that the costs are not Rs.35,000/- but only Rs. 15,000/- - on the assumption that the earlier cheque of Rs.20,000/- given to the respondent had been encashed.

¶11Despite this being the position, even on the date fixed for recording his cross examination, the respondent only tendered two cheques of Rs. 15,000/-. If he were serious about compliance of the order he would have either brought cash or pay order for the entire amount of Rs.50,000/-.

¶12The conduct of the respondent has to be viewed in the light of the earlier proceedings. It is seen from the earlier proceedings that on repeated occasions, the respondent did not appear and offer himself for cross examination, which is why his right to lead evidence and cross examination was closed. Thus, this Court, while indulging in the petitioner on

17.03.2015 observed that on merits the petitioner was not deserving of relief, i.e. of interference with the orders dated

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13.05.2014, 06.10.2014 and 21.01.2015. It is clear that the petitioner is only seeking to drag the proceedings and to prevent the conclusion of the proceedings before the Family Court. I am, therefore, not inclined to grant any further indulgence and I find no error of jurisdiction in the impugned order."

¶17In these circumstances it is not for the appellant to urge that he was not given an opportunity to represent himself adequately. As is apparent from the record, the appellant defaulted time and again with payment of amount, which was the condition precedent for his appearance. This Court by its order dated 17.03.2015 felt it proper in the interest of justice to allow the appellant a chance of cross-examination despite there being no merit in his arguments. The appellant chose to fritter away the opportunity given to him through his callous attitude and is estopped through his conduct from raising such ground in appeal.

¶18On the merits, the trial Court was of the opinion that the appellant had caused mental cruelty to the respondent wife by making utterly unfounded allegations of adultery against her. In his appeal, the husband claims that his counter claim for restitution of conjugal rights should be allowed. The learned Judge rejected it on the ground that the firstly the appellant's remarks against his wife inflicted cruelty on her and secondly restitution could not come with riders (the sort the appellant placed) given the circumstances of the case; he claimed restitution subject to the respondent giving up her adulterous relationship. The Court also referred to a newspaper article, which was published at the direction of the appellant which reported the dismissed case under the Domestic Violence Act and referred to the respondent as adulterous. The article has been admitted by the appellant and

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goes to show that the appellant was on a mission to humiliate the respondent in public which clearly amounted to mental cruelty.

¶19This court now proposes to proceed to determine whether the act of alleging adulterous relationship in the circumstances of this case would warrant dissolution of marriage under Section 13(1)(ia) of the Act i.e. cruelty. While Section 13(1)(ia) contemplates both physical and mental cruelty, the current appeal pertains to mental cruelty. Mental cruelty cannot be defined through a straitjacket formula and there is no exhaustive list as to what constitutes it. As a starting point, to establish cruelty one may analyse the intention, knowledge or character of the respondent, the nature of the spouse alleging cruelty including his/her mental and physical weaknesses; in essence there can be no general rules and one must proceed on a case-by-case basis to determine what constitutes mental cruelty. Mental cruelty can at times cause more grievous harm than physical cruelty and create in the mind of the suffering spouse a reasonable apprehension that it will be unsafe to live with the other spouse. In cases of mental cruelty the facts need to be delved into; the Court is required to deconstruct the mental process as well as extrapolate the effects of such incidents through evidence brought on record. When the whole conduct of the spouse shows instances of ill-treatment including allegations which cast aspersions on the fidelity of the other spouse which in turn could demoralize the affected spouse causing mental agony and stress then under such circumstances a strong case of mental cruelty exists. The Supreme Court ruled, in Vishwanath Agrawal vs. Sarla Agrawal, AIR 2012 SC 2586 that uncalled for allegations (of extra-marital affairs) are bound to create mental agony and anguish. In that case, the wife had made baseless allegations unsupported by evidence, of her husband having an

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extra-marital affair. She also published an article in a newspaper making allegations about her husband's womanizing ways. The husband filed for divorce on grounds of cruelty which was rejected by the trial court as well as the High Court. However, in appeal, the Supreme Court allowed dissolution of marriage. It was observed: "We really fail to fathom how from this incident and some cryptic evidence on record, it can be concluded that the respondent-wife had established that the husband had an extra marital relationship with Neeta Gujarathi. That apart, in the application for grant of interim maintenance, she had pleaded that the husband was a womaniser and drunkard. This pleading was wholly unwarranted and, in fact, amounts to a deliberate assault on the character. Thus, we have no scintilla of doubt that the uncalled for allegations are bound to create mental agony and anguish in the mind of the husband."

¶20The appellant in his written statement before the Family Court denied all allegations levelled against him by the respondent and went on to allege that the latter was in an adulterous relationship, without any concrete evidence. All he produced was a photograph of the respondent with Himanshu in Agra, which does not conclusively determine the existence of an extra-marital relationship as alleged by him. Further, the publication of an article in a newspaper referring to the respondent as adulterous, a fact admitted by the appellant during trial suggests a mental element in defaming the respondent to the world at large. It is also admitted that he inflicted physical harm upon his son, of such kind, which led to the respondent seeking police assistance. Under the circumstances, it is fathomable that the respondent was not inclined to return to her matrimonial home and sought dissolution of her marriage with the appellant. The appellant could not bring

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before this Court cogent evidence to prove his wife's affair though he still continues to allege it. In the circumstances, the appellant's version of events is liable to be dismissed as being nothing but exaggerated tales.

¶21Marriages-more than any other relationships-are founded and sustained on trust and mutual understanding. If suspicion enters this relationship, it is in the interests of both spouses to clear the air, or else doubts would simmer, take ominous shape in the form of phantasmagoria of enormous magnitude. In this case, the husband appears to have harboured such suspicions, and, all too willingly allowed them to fester and assume large proportions. Distressingly, this led him to level wild and unfounded allegations, which he persisted with, even in the present appeal. Such feelings are utterly unconducive of any meaningful conjugal relationships. Cruelty, otherwise, is a phrase of many hues. Courts are advisedly circumspect in stereotyping what is cruelty or what can be described as cruelty because acceptable behaviour in one mileu can be entirely anathema in another. One recollects the wise instruction of A.P. Sen, J in Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121: "There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The Judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a

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generation gap between the Judges and the parties. It would be better if the Judges keep aside their customs and manners. It would be also better if Judges less depend upon precedents."

Cruelty therefore, is contextual-to the times, to the place, to the station in life of the spouses and attendant circumstances. In a bye-gone era, perhaps it might have been acceptable for a husband to level unfounded allegations of adulterous relationships of the wife; not any longer. It is at once traumatic and destructive of the very foundation of matrimony.

¶22For the above reasons, this Court is of the opinion that the Family Court's order granting divorce to the respondent and disallowing the appellant's counter claim is justified and need not be interfered with. The appeal, therefore, is dismissed. There is no order, in the circumstances, as to costs.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) AUGUST 03, 2016

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 19.07.2016 Pronounced on: 03.08.2016 + GOPAL KRISHAN DUA .....Appellant Through: Sh. Davinder Hora and Sh. Sikandar Khan, Advocates. Versus RAJNI DUA AND ANOTHER ....Respondents Through: Sh. Sunil Mittal, Sr. Advocate with Sh. Dhruv Grover, Advocate. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA MR. JUSTICE S. RAVINDRA BHAT % 1. This appeal under Section 19 of the Family Courts Act, 1984 is directed against the judgment dated 22.08.2015 passed by the Principal Judge, Family Courts, Tis Hazari. The learned Judge allowed the wife's petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereafter "the Act") and dismissed the husband's counter claim for restitution of conjugal rights under Section 9 of the Act. 2. The facts relevant to decide the case are that the wife ("respondent") married the appellant on 09.08.1989 in New Delhi; two sons were born from the wedlock on 26.10.1992 and 17.06.1996. The wife, in her petition before the learned Judge alleged various acts of mental as well as physical cruelty to Page 2 which she was subjected by the appellant husband. In her petition she alleged that the appellant used to constantly taunt her for getting insufficient dowry and would, at times, lock her up in a room. It is also alleged that the appellant is highly aggressive and accustomed to inflicting cruelty because of which his previous marriage ended in divorce within just a few months. The wife alleged that the appellant humiliated and abused her on a daily basis, which impacted the children as well. It was alleged by the respondent wife that once in July 2004, the appellant beat her and banged her head on the wall leading to her sustaining multiple injuries; she did not, however, disclose it for the sake of her children. She claims that this sort of physical violence as well as cruelty and humiliation was regular feature that she suffered for several years for the welfare of her children. 3. The wife had alleged that matters took a turn for the worse when on 01.05.2006 at about 4.00 pm, the Appellant abused her and began beating his son. A PCR had to be called to diffuse the situation. The same night, upon the wife returning home with her son, the appellant refused to open the door and let them in; he threatened to kill her and the children. Yet again PCR was called so that they could enter the house. On 01.05.2006 and 03.05.2006 the wife was constrained to file criminal complaints with the SHO, C.R. Park and demanded police security. It is under these circumstances that the respondent sought dissolution of marriage and instituted the petition on 06.03.2007. 4. The appellant husband in his defence, denied all allegations of cruelty and accused the respondent wife of misconduct. He filed a counter claim, under Section 9 of the Act, for restitution of conjugal rights, and impleaded Himanshu Deshpal ("Himanshu") who is respondent No. 2 in the present Page 3 appeal. He alleged that the respondent wife complained for the first time only in 2006, after more than 18 years of marriage as she was in an extra- marital affair with Himanshu Deshpal, which is continuing ever since. He alleged that the respondent/wife and Himanshu Deshpal had made several outstation trips including one to Agra along with the children. He alleged that the wife was a serial litigant who had filed a complaint before the CAW Cell as well as filed a complaint under the Domestic Violence Act under section 498A/406 of the Indian Penal Code which was ultimately dismissed by the learned Metropolitan Magistrate, thus suggesting the appellant's innocence. 5. Based on the claims of the respondent and counter claim of the appellant, the learned Judge framed the following issues for determination on 12.05.2008: "1. Whether the respondent Sh. Gopal Krishan Dua has, after solemnization of marriage treated the petitioner with cruelty? OPP 2. Whether the petition