The importance of cross-examination in establishing one's case in matrimonial disputes and the standard of proof based on preponderance of probabilities.

JUDGMENT :

REKHA PALLI, J.

C.M.No.3968/2021

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

C.M.No.3969/2021 (condonation of delay in refiling)

1. This is an application filed by the petitioner seeking condonation of delay in refiling the present petition.

2. Keeping in view that the accompanying petition was filed within the period of limitation, the delay in re-filing which took place mainly during the period when the regular functioning of the Court stood suspended, we are inclined to accept the explanation given in the application and proceed to deal with the appeal on merits.

3. The application is, accordingly, allowed and disposed of.

MAT.APP.(F.C.) 18/2021

4. The present appeal under section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as “HMA”) assails the judgement dated 21.11.2019 passed by the Principal Judge, Family Courts, West District, Tis Hazari Courts, Delhi, in HMA NO. 1069/19/11, allowing the divorce petition preferred by the respondent/husband on the ground of cruelty under Section 13(1)(ia) of the HMA. The impugned judgment also disposed of the appellant/wife’s application under Section 24 of the HMA by holding that since she had already been awarded maintenance under Section 12 of the Protection of Women from Domestic Violence Act, 2005, she was not entitled to any further maintenance which she sought under Section 24 of the HMA because both of these proceedings were parallel in nature.

5. The facts in brief are that the marriage between the parties was solemnized on 07.02.2010 in accordance with Hindu rites and ceremonies; they had a daughter out of the wedlock on 30.12.2010. The parties have, however, been residing separately since 28.11.2011. A few weeks later, on 17.12.2011, the respondent preferred a petition under Section 13(1)(ia) of the HMA seeking dissolution of the marriage on the grounds of cruelty. The case of the respondent before the Family Court was that notwithstanding the cordial manner in which she was received by his family and all his efforts to maintain congeniality in their marriage, his wife/the appellant treated his family and him with cruelty and cold insolence. The divorce petition contained detailed descriptions of the various instances of cruelty alleged by him, which involved the appellant humiliating him and his family. He claimed that the appellant, who was arrogant, finicky and failed to take any initiative in adapting to the matrimonial house, used to force him to take her to her parental home very frequently. The respondent further claimed that the appellant was compelling him to leave his family home, his family and reside with her in an accommodation near her parents’ house. He claimed that when he failed to abide by this demand of hers, the appellant not only picked a fight with him, but she also left the matrimonial home on 28.11.2011 with their minor child, while threatening to implicate him and his family in false cases.

6. The appellant filed her written petition, opposing the divorce petition and alleging that she was the one who had been ill-treated and tortured by the respondent and his family members, who had created such a toxic environment for her, that she ultimately decided to leave their house. She claimed that the respondent’s family were enraged with her for bringing insufficient dowry and often expressed this, they also ostracised her and would not allow her to enter the kitchen or share in household chores. This behaviour compelled her to file complaints against the respondent and his family before the DCP (Women Cell) of the Delhi Police, Kirti Nagar, which complaint is presently under investigation.

7. Before the learned Family Court, the respondent, in support of his allegations, filed his evidence by way of affidavit which set out the date, time and description of all the incidents displaying cruelty on the appellant’s part, including the manner in which he and his family were taunted and humiliated by her.