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DELHI HIGH COURT
Najmi Waziri, J.
Sandhya Pandey —Appellant
versus
Kunj Bihar Pandey —Respondent
Mat.App. No. 60 of 2012 & CM Appl. No. 18340 of 2012
Decided on 30.5.2014
Facts of the case
Petitioner was married to the respondent and 2 children were born, however, after marriage there was continued demand of money and jewellary etc. and since her parents could not meet the demands, she was harassed and physically tortured and beaten. Rs. 50000, however, was given to the respondent by her parents but behavior of respondents did not improve. The trial Court did not believe the statement of the petitioner for lack of corroboration and that no specific dates were mentioned as to when the cruelty occurred and that she did not file complaint to Crime Against Women Cell.
Finding of the Court
The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what the probabilities in a case are and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In case where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
Furthermore, the petitioner claimed that she was deserted on 05.02.2008 and she has been living separately from her husband who had moved on to his native place; that the petition was filed after 2 years of statutory period in March 2010. There again, being no controversy of this claim, there could be no reason to disbelieve her. The act of cruelty also stood established. Accordingly, held that both the grounds of cruelty as well as desertion were established and the petitioner was entitled to a decree of dissolution of marriage under Section 13(1)(i-a) and 13(1)(i-b) of the Act. The Trial Court fell into error in seeking corroboration of admittedly uncontroverted facts. In the circumstances, the impugned order is set aside. The petition is allowed and the marriage between the petitioner and the respondent is hereby dissolved on the grounds of cruelty and desertion.
Result: Petition Allowed
Najmi Waziri, J.—his petition impugns an order dated 21.07.2011 which ismissed the petitioner’s petition seeking grant of a decree of divorce under Section 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 955.
2. The facts are that the petitioner had married the respondent on 6.05.1990 at Chhapra, Bihar. The petitioner started living alongwith respondent as husband and wife in her matrimonial home. Two children namely Abhilasha and Master Abhinav were born to them. petitioner came into her matrimonial home along with gifts and jewellery. However, after marriage unreasonable demands towards money as well as jewellery etc. continued to be made by the respondent and his family members. Since the petitioner’s parents were not in a position to meet the said demands of money and jewellery, she was repeatedly beaten up by the respondent while the rest of his family members were extremely inimical and cruel towards her. However, an amount of Rs.50,000/- was paid to the respondent by the petitioner’s family by taking the same on loan from their relatives. It is stated that despite the payment of the said amount of Rs.50,000/- the behaviour of the respondent and his family members did not improve towards her, rather they became more cruel towards her thereby resulting in torture and abuse of the petitioner in her matrimonial home and she was forced to do the entire household works like a domestic servant there. She alleged that she was thrown out of her matrimonial home on 30.06.2007 along with her two children. On that day all that they had with them were the clothes on their bodies. She sought refuge in one of her relatives’ family namely Ashok Singh at D-99, Yadav Nagar, Samaipur Badli, Delhi. Thereafter, on 26.08.2007 when she went to her matrimonial home along with her minor daughter to take her minor daughter’s bicycle and books etc. the respondent beat her and her minor daughter. The police was then called and thereafter she was medically examined at trauma centre, Delhi. During investigation she came to know through her neighbours that the respondent has been trying to sell her matrimonial home A-14/6, Bawa Colony, Burari, Delhi-84 through Power of Attorney, sale deed etc. She claims that with the intervention of the local police as well as respectable members of the society, she was re-inducted in the matrimonial home on 08.09.2007 when the respondent and his family members also promised not to harass her in future. She claims that she is residing at the said address with her minor children ever since. She also stated that certain blank documents were made to be signed by her unknowingly by the respondent and his family members. That thereafter, the respondent and his family members continued to extend threat to her and her children to dispossess them from the matrimonial home of the petitioner as a result whereof she had filed a suit seeking permanent injunction against the respondent for restraining him from dispossession of the matrimonial home. An interim injunction was granted in her favour on 14.01.2008. The petitioner contends that since 05.10.2008, the respondent has left the company of the petitioner and is residing at his native place at Chhapra, Bihar; whereas the petitioner has been living alone since then without any monetary support or help from her husband to meet her personal expenses and for upbringing of their children. It was stated that the petition was not filed in collusion with the respondent and she had not condoned the acts cruelty committed by the respondent; there was no delay in filing the petition. She stated that there was no reason why the relief sought by her could not be granted.
3. Although notice of the petitioner was issued to the respondent, but he could not be served through ordinary process but was served by substituted service through publication in Rastriya Sahara, Bihar Edition dated 16.04.2011. Due to default in appearance despite service through publication, the respondent w
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