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DELHI HIGH COURT
Pradeep Nandrajog and Pratibha Rani, JJ.
Sandhya Kumari & Anr. —Appellants
versus
Manish Kumar & Anr. —Respondents
Mat.APP.(F.C.) Nos.36 & 57 of 2014
Decided on 21.10.2016
Counsel for the Parties:
For the Appellant in Mat.APP.(F.C.) 36 of 2014 and For the Respondent in Mat.APP.(F.C.) 57 of 2014:Mr.Pramod Kapur, Advocate
For the Respondent in Mat.APP.(F.C.) 36 of 2014 and For the Appellant in Mat.APP.(F.C.) 57 of 2014:Ms.Juhi Arora, Advocate
IMPORTANT POINT
Where there is evidence that the husband and wife indulged in mutual bickering leading to remonstration and therefrom to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be a relevant factor to decide on the issue of cruelty, for the reason the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatized each other.
Headnote:Hindu Marriage Act, 1955—Section 13(1)(ia)—Petition for divorce on ground of cruelty filed by husband dismissed by Family Court—Petitioner seeking restitution of conjugal rights filed by wife also dismissed by Family Court—Appeal by each side—Pleadings and testimony of both parties concerning acts of oppression and cruelty alleged against each other failed to substantiate their assertions and both sides had spoken gross lies concerning how and under what circumstances wife had an abortion—It was a case where by exaggerating facts couple picked up quarrels imputing allegations against each other—It was a case of mutual cruelty inflicting against each other—Marriage took place in March 2011 and by mid July 2011 couple had made a mess of themselves—Though irretrievable breakdown of marriage was not a ground for divorce but concept of cruelty could be seen blended with irretrievable breakdown of marriage—Marriage in given facts deserved to be dissolved by allowed petition filed by husband.
Held: Evidence establishes that both Sandhya and Manish gave a very serious twist to the unfortunate abortion which Sandhya had. It establishes that both couple have the propensity to twist facts so as to suit their convenience. From the point of view of Manish, Sandhya’s allegation that she aborted as a result of being assaulted by the petitioner and his parents would be an act of mental cruelty. From the point of view of Sandhya, Manish’s allegation that she aborted the foetus without consulting him would be an act of cruelty. The fact was that the foetus was dead. Both knew it. Abortion was inevitable. Regarding household goods gifted by Sandhya’s parents at the time of the marriage, a bona-fide act of Manish to sell the refrigerator on account of it being small and replacing the same with a bigger refrigerator has been given a colour by Sandhya to assert that the petitioner, to make money, started selling the gifts given by her parents. Similar would be the position i.e. Sandhya exaggerating facts concerning dowry demand.
It is thus a case where by exaggerating facts, the couple picked up quarrels imputing allegations against each other. They found excuses to find fault with each other. By their conduct both aggravated the worsening situation. It is a case of mutual cruelty inflicting against each other. Senseless mental torture continued all through when the parties cohabited.
The marriage took place on March 08, 2011 and by mid-July, 2011 i.e. in four months the couple had made a fair mess of themselves. From the incident of abortion the two trying to take advantage by painting the backdrop to the incident, as noted above, is an indication of the relations between the two being extremely strained from the very inception of their marriage. It is clear that the two were fighting each other from the beginning of their marital life and during the short period of four months the two have deliberately created problem for each other. The two have exaggerated every minute aspect which occurred in day to day life and were finding fault with each other. Both, by their conduct, aggravated the worsening situation. Senseless mental torture continued all through when the two cohabited for four months. Tolerance, adjustments and respect to each other are totally absent. The marriage is a total wreck. Separated in mid-July, 2011 the two could not be reunited in spite of various efforts made for conciliation before the learned Judge, Family Court. Trained Counsellors could not help the couple salvage their marriage.
Though irretrievable breakdown of marriage is not a ground for divorce but in the judgments reported as 2006 (2) Mh.L.J. 307 Madhvi Ramesh Dudani Vs. Ramesh K.Dudani, 2007 (4) KHC 807 Shrikumar V.Unnithan vs. Manju K.Nair, (1994) 1 SCC 337 V.Bhagat vs. D.Bhagat and (2006) 4 SCC 558 Navin Kohli vs. Neelu Kohli the concept of cruelty has been blended by the Courts with irretrievable breakdown of marriage. The ratio of law which emerged from said decisions is that where there is evidence that the husband and wife indulged in mutual bickering leading to remonstration and therefrom to the stage where they target each other mentally, insistence by one to retain the matrimonial bond would be a relevant factor to decide on the issue of cruelty, for the reason the obvious intention of said spouse would be to continue with the marriage not to enjoy the bliss thereof but to torment and traumatized each other.
Bringing the curtains down MATA(F.C.) 57/2014 filed by Manish is allowed. Impugned judgment dated January 31, 2014 dismissing HMA No. 141/2012 is set aside. HMA No.141/2012 is allowed. The marriage between Manish and Sandhya solemnized on March 08, 2011 stands dissolved by passing a decree of divorce. MATA(F.C.) 36/2014 filed by Sandhya is dismissed. (Paras 18 to 22)
Result: Mat.APP.(F.C.) No.57 of 2014 other appeal dismissed.
Pradeep Nandrajog, J.—Sandhya is aggrieved by the decision dated January 31, 2014 dismissing HMA No.489/2012 filed by her seeking restitution of conjugal rights. Manish is aggrieved by a decision of even date dismissing HMA No.141/2012 filed by him seeking decree for divorce on grounds of cruelty. The two decisions dated January 31, 2014 have been authored by the same learned Judge presiding over the Family Court at Dwarka and we find that the evidence led by the parties is the same in the two petitions; one filed by the wife and the other filed by the husband.
2. The first shot was fired by Manish; apparent from the fact that the petition filed by him bears serial No.141/2012 and the one filed by Sandhya is 489/2012.
3. Case pleaded by Manish was that the marriage solemnized on March 08, 2011 was without any demand of dowry from him or his family, but customary gifts were given by the parents of Sandhya. The couple lived with his parents at P-283, Mohan Garden, Buddh Bazar Road, Uttam Nagar, Delhi. Both were working. The first act of cruelty alleged is that after two days of marriage Sandhya went to her parental house and returned after one month notwithstanding he making efforts for her to return to her matrimonial home. He could not understand the behaviour of Sandhya who would say that she was uncomfortable in her matrimonial home because there was no air conditioning in the house and that she did not want to perform household chores. The next (second) act of cruelty alleged is when the couple went to Vaishno Devi in April 2011. As per Manish, Sandhya reduced the trip to a nightmare on account of Sandhya constantly nagging him for bringing less money. The further act of cruelty is linked to the first, inasmuch as Manish pleads that half the time Sandhya used to spend in her parental house telling him that she had no time to cook meals in her matrimonial home. The third act of cruelty alleged is that on July 05, 2011 Sandhya telephonically informed him from her office that she was in the family way and had to undergo an ultrasound. Since during those days Sandhya was in her parental home he went to the house of her parents and took her to a doctor. Ultrasound showed a normal foetus. He pleads that on July 12, 2011, Sandhya returned to her matrimonial home, a day which turned out to be a nightmare. As per him Sandhya fought with him. Abused him and his parents. At 5.00 A.M. the next day i.e. July 13, 2011 Sandhya started shouting that she had aborted. He rushed her to a private clinic but Sandhya insisted to be taken to Dada Dev Matra Avm Shishu Chikitshalay. He pleads that Sandhya was brought back by him and she told him that she had to revisit the hospital after four days. He took her to Gupta Nursing Home to get an exact report and (quote) : ‘The petitioner and his family were shocked to learn that the respondent had already aborted the baby without even taking any advice or informing the petitioner and his family’. Meaning thereby cruelty alleged was the unilateral act of Sandhya to abort the foetus. He pleads that on October 04, 2011 Sandhya left the consortium and went to her parental house never to return. She took her jewellery along. Whenever he tried to meet her to counsel her to return she would threaten saying that the two would henceforth meet only in the Court. On December 26, 2011 he received a notice from Crime Against Women Cell and when he reached the Cell he was humiliated by Sandhya.
4. Sandhya’s response was that from the inception of the marriage Manish was indifferent towards her. She denied that there was no demand for dowry and asserted that her father spent Rs.10 lacs in the marriage and apart from jewellery to her, which was taken possession by her in-laws, household articles and a Bajaj Pulsar Motorcycle was given in dowry. She pleaded that just after the marriage her in-laws demand Rs.5 lacs to purchase a car. She denied having returned to her parental house two days after the marriage. S
