Sunday, December 11, 2016

Hindu son can divorce wife if she tries to separate him from aged parents

http://www.thehindu.com/multimedia/archive/03037/Hindu_son_can_divo_3037056a.pdf

Long separation ground for divorce

RAKESH KUMAR V/S MONIKA
Date:- Tuesday, November 29, 2016
Court:- High Court of Punjab and Haryana
Judges:- THE HONOURABLE MR. JUSTICE M. JEYAPAUL & THE HONOURABLE MR. JUSTICE TEJINDER SINGH DHINDSA
Advocates:- Parminder Singh. C.B. Goel.

Full Text:-
     Tejinder Singh Dhindsa J. 1. The appellant assails the judgment and decree dated 15.01.2009 passed by the learned Additional District Judge Kurukshetra (in short 'the trial Court') dismissing his petition for dissolution of marriage by way of a decree of divorce. The appellant/husband filed a petition under Section 13-B of the Hindu Marriage Act 1955 on the twin grounds of cruelty and desertion. It was asserted that marriage between the parties was solemnized on 22.02.2002 at Kaithal according to Hindu rites and ceremonies. The appellant/husband sought to substantiate the grounds of cruelty and desertion against the respondent/wife inter alia on the following basis: (i) It was alleged that the wife was a short tempered lady and who was in the habit of picking up fights and quarrels on petty issues. (ii) It was asserted that the wife was of a non-cooperative nature and would never entertain the relatives as also friends of the husband. Rather she used to misbehave in the presence of the relatives and friends and on account of which the husband felt insulted and humiliated. (iii) The respondent/wife delivered a female child at her parental home at Kaithal on 10.12.2003 but no intimation of the same was given to the husband or his family members. (iv) That a false case bearing FIR No.291 dated 25.05.2006 under Sections 406/498-A IPC was registered against the husband as also his parents at Police Station City Kaithal in order to harass and humiliate not only the appellant/husband but also his father and mother. (v) As regards desertion it was asserted that the wife left the matrimonial home on 14.05.2003 without any rhyme and reason when she was pregnant. The husband as also his parents convened Panchayats on more than one occasion so as to bring the wife back into the matrimonial fold but with no success. Further alleged that not only did the wife decline to join company of the husband but even the Panchayat members were humiliated and insulted. The respondent/wife filed a written statement denying all the allegations. To the contrary the wife accused the appellant/husband of harassment and cruelty. Respondent averred that she has been maltreated and tortured for bringing insufficient dowry and demands of dowry were raised. She was turned out of the matrimonial home on 14.05.2003 when she was pregnant. When a female child was delivered at the parental home at Kaithal i.e. on 10.12.2003 due intimation had been furnished to the husband and who in spite thereof did not visit the respondent/wife and chose not to even see the new born child. Respondent/wife asserted in the written statement that extreme circumstances had been created by the husband as also his family members and which left her with no option but to lodge a complaint and which in turn led to registration of FIR No.291 dated 25.05.2006 at Police Station City Kaithal under Sections 406/498-A IPC. The trial Court framed the following issues: (i) Whether the petitioner is entitled to a decree of divorce on the ground of cruelty as alleged? OPP (ii) Whether the petitioner is entitled to a decree of divorce on the ground of desertion as alleged? OPP (iii) Whether petition is not maintainable in the present form? OPR (iv) Relief. Learned trial Court permitted the parties to lead evidence in support of their respective contentions. The appellant examined one Darshan Kumar as PW2 Darshan Lal as PW3 Ramsarup Sachdeva as PW4 his father Om Parkash as PW5 and he himself stepped into the witness box as PW6. On the other hand the respondent/wife herself appeared as RW1 and examined Tilak Raj her uncle as RW2 and Smt. Sudesh Rani her mother as RW3. Learned trial Court after considering the pleadings the evidence adduced and rival submissions determined issues No.1 and 2 against the appellant/husband and as a consequence dismissed the petition for divorce. Feeling dissatisfied with the judgment passed by the trial Court the instant appeal has been preferred by the appellant/husband. It would be apposite to take note that on a previous date of hearing i.e. on 04.03.2015 CM-1021-CII-2015 i.e. an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure was allowed by this Court thereby permitting the applicant/appellant to place on record judgment dated 30.09.2011 passed by the Judicial Magistrate 1st Class Karnal as Annexure P-1 acquitting the appellant/husband as also his parents namely Om Parkash and Sudesh Rani in case FIR No.291 dated 25.05.2006 that had been lodged at the instance of the respondent/wife. Permission was also granted to place on record at Annexure P-2 the judgment dated 25.05.2013 passed by the learned Sessions Judge Kaithal whereby the judgment of acquittal dated 30.09.2011 at Annexure P-1 was affirmed. Suffice it to observe that the judgment of acquittal in favour of the appellant/husband as also his parents came to be delivered after institution of the instant appeal bearing FAO-M-47 of 2009. Counsel for the appellant has raised a solitary submission in support of ground of cruelty by adverting to the judgment of acquittal dated 30.09.2011 (Annexure P-1) and urges that acquittal of the appellant/husband as also his parents entitles him to grant of decree of divorce on the ground of levelling false allegations and which in turn amounts to cruelty. Heavy reliance in support of such contention has been placed upon judgment of the Hon'ble Supreme Court in K. Sriniwas Rao Versus D.A. Deepa 2013 (2) RCR (Civil) 232. It has been vehemently argued that conduct of the respondent/wife in lodging a false FIR and in pursuing the criminal proceedings with an intent to ensure that the appellant/husband as also his father and mother are put in jail amounts to mental cruelty sufficient to form the basis for a decree of divorce. Per contra Mr. C.B. Goel learned counsel representing the respondent/wife submits that the appellant has not proved cruelty or desertion. A perusal of the findings recorded by the trial Court would reveal that the appellant has not proved any specific instances of cruelty whether mental or physical. It is argued that mere lodging of an FIR or acquittal of the appellant cannot be construed to be an act by cruelty particularly when the allegations are neither scandalous nor levelled against the character of the husband or his parents. Mr. Goel Advocate has placed reliance upon two Division Bench judgments rendered by this Court in Padam Kumar Jain Versus Ashi Jain @ Babita Jain 2016 (3) RCR (Civil) 396 and Amit Kaushik Versus Monika Gaur 2016 (3) RCR (Civil) 79. Counsel would also contend that the appellant/husband is not to be given any mileage on the basis of a judgment of acquittal recorded by giving 'benefit of doubt'. We have heard counsel for the parties and perused the records. The allegations raised by the appellant/husband and as discernible from the petition as well as the deposition of the appellant and his witnesses is devoid of any material particulars much less reference to any specific acts of cruelty whether physical or mental. The issue however that arises for consideration is whether the admitted acquittal of the appellant/husband as also his parents in a trial under Sections 406/498-A IPC can serve the foundation for grant of a decree of divorce. The issue that has been formulated hereinabove has been considered by the Hon'ble Supreme Court as also by this Court on a number of previous occasions. In K. Sriniwas Versus K. Sunita 2015 (1) RCR (Civil) 38 Hon'ble Supreme Court of India held as under: “The Respondent-wife has admitted in her cross-examination that she did not mention all the incidents on which her complaint is predicated in her statement under Section 161 of the Cr.P.C. It is not her case that she had actually narrated all these facts to the Investigating Officer but that he had neglected to mention them. This it seems to us is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that the criminal complaint was “ill advised”. Adding thereto is the factor that the High Court had been informed of the acquittal of the Appellant-Husband and members of his family. In these circumstances the High Court ought to have concluded that the Respondent-Wife knowingly and intentionally filed a false complaint calculated to embarrass and incarcerate the Appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1) (ia) of the Hindu Marriage Act.” A Division Bench of this Court in Sushma Taya Versus Arvind 2015 (2) RCR (Civil) 888 while holding that acquittal of the husband in prosecution initiated at the hands of the wife raises an inference of cruelty observed as follows: 14. Needless to say that there appears no illegality or perversity in the judgment of learned trial Court. It has been held by Hon'ble Apex Court in a recent judgment in K. Srinivas Rao v. D.A. Deepa 2013 (2) R.C.R. (Civil) 232; 2013 (2) Recent Apex Judgments (R.A.J.) 102: 2013 (5) SCC 226 that it is now beyond cavil that if a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty such as would entitle the other spouse to claim a divorce. 15 Not only from the judgment Ex.PB but also from the report of the Women Cell Ex.PA and testimony of PW2 Ram Kumar it is established that the allegations of the appellant against her husband respondent-Arvind and his family members that they demanded dowry from her or ill treated her were false. Certainly levelling wild allegations and thrusting the agony of undergoing proceedings/trial in a criminal case on the husband and his family which ultimately proved to be false amounted to utmost cruelty towards the husband.” In FAO-120-M of 2003 titled as Surinder Pal Singh Versus Mandeep Kaur @ Bimla Rani decided on 26.02.2016 a Division Bench of this Court had observed that an allegation may itself not constitute cruelty but if the allegation is fake grave defamatory assassinates the character and is initiated to traumatize the other spouse then depending upon the nature of the allegation it may raise an inference of cruelty. It was further observed that the trauma suffered by a spouse who is arrested charge sheeted has faced a full-fledged criminal trial and is then acquitted by holding that charges levelled are false can but be imagined. It is in the light of such observations that the facts of the case in hand need close scrutiny. Perusal of the judgment of acquittal dated 30.09.2011 by the competent criminal Court at Annexure P-1 as also the judgment dated 25.05.2013 passed by the Appellate Court at Annexure P-2 affirming the decision of acquittal would make it apparent that assertion had been made by the respondent/wife as regards sufficient dowry having been given at the time of Shagan ceremony on 21.02.2002 on the date of marriage i.e. 22.02.2002 as also cash having been entrusted on subsequent dates to fulfill the repeated demands raised by the husband as also his parents. There were allegations made by wife of having been given merciless beatings having been kept hungry and then being turn out of the matrimonial home on the threat that she would be permitted entry back into the matrimonial house only upon bringing more money as also a Zen car. Based on the complaint FIR had been registered on 25.05.2006 at Police Station City Kaithal under Sections 406/498-A IPC. As regards proving of offence under Section 406 IPC even presuming that there had been entrustment of dowry articles/stridhan it had to be established that in spite of demand having been raised the same had not been returned and which in turn would be construed as criminal breach of trust. The competent criminal Court has recorded a finding based upon the deposition of the complainant herself as PW2 wherein she admitted in her cross-examination that no demand at any point of time had been raised for return of dowry articles/stridhan. Even the deposition of PW3 Sunil Kumar and who had claimed to have attended various Panchayat proceedings to amicably resolve the matter had not stated as regards any demand having been raised for return of stridhan. Even father of the complainant Ashok Kumar PW4 even though had deposed that his daughter had been thrown out of the matrimonial house did not even utter a single word as regards the dowry articles/stridhan having been demanded back and the accused i.e. the husband and his parents having refused to return the same. It is in the light of such cogent and valid reasoning based upon due appreciation of evidence that the criminal Court has come to the conclusion that no offence under Section 406 IPC was made out. As regards the offence punishable under Section 498-A IPC is concerned the allegations raised by the complainant/wife of having been teased taunted and tortured against demand of dowry has been disbelieved. In the complaint Ex.PG the respondent/wife had alleged that she had been kept hungry and without water for hours by the accused i.e. the husband and his parents only to pressurize the complainant and her family members to get their demands fulfilled. The competent criminal Court has taken a view that if such allegation was correct then the complainant i.e. the wife would have certainly disclosed such behaviour to her own parents. PW4 Ashok Kumar i.e. father of the complainant has not corroborated the version of the complainant in such regard. Furthermore mother of the complainant who would normally be seen as the best companion of a married daughter was not even examined by the prosecution and in fact was given up as not necessary. On the charge levelled by the respondent/wife of having been allegedly beaten up there was no specific attribution to any of the accused and even the manner and time of such beating was not disclosed. Furthermore the Appellate Court while disbelieving the version of the complainant and affirming the order of acquittal has noticed that as regards recovery of dowry articles/stridhan reflected in memo Ex.PD a recovery of a scooter bearing registration No.HR-05-L-4137 was shown but as per testimony of DW2 Rajbir Singh Registration Clerk such scooter stood registered in the name of the appellant/husband as on 22.10.2001 whereas the entrustment of the scooter was alleged to be on the date of marriage i.e. on 22.02.2002. This has also cast a serious doubt on the veracity of the allegation raised by the wife. We find that in the written statement filed by the respondent/wife to the petition instituted by the husband under Section 13 of the Hindu Marriage Act the same very allegations were reiterated. Such allegations have been found to be false by the competent criminal Court. It has gone uncontroverted that in pursuance to the registration of FIR on account of a complaint having been lodged by the respondent/wife the appellant/husband as also his father were arrested and sent to jail. Mother of the appellant/husband was constrained to file a petition seeking concession of pre-arrest bail and the same was granted subject to her joining investigation. The appellant/husband as also his parents have suffered the ignominy of a protracted trial on the basis of false and reckless allegations levelled by the respondent/wife. We are of the view that in such matters it is not only the acquittal in criminal proceedings of a spouse but also the conduct of the complainant party that would be material. We have even perused the statement recorded of the respondent/wife before the trial Court and who had appeared as RW1. In the cross-examination the respondent/wife has admitted that she along with her mother had accompanied the police party to Karnal to facilitate the recovery of dowry articles. It has already been noticed by us that during the course of criminal prosecution recovery had been got effected of articles that had not even been entrusted at the time of marriage or thereafter. A clear instance is the recovery of a scooter bearing registration No.HR-05-L-4137 as per recovery memo Ex.PD and which already stood registered in the name of appellant/husband on 22.10.2001 as opposed to the date of marriage which was subsequent in point of time i.e. on 22.02.2002. In the totality of circumstances we are of the considered view that the dictum in the judgments in K. Sriniwas and Sushma Taya's case (supra) applies squarely to the facts of the present case as well. The appellant/husband as also his parents have faced the pain anguish and agony of a criminal trial on the basis of allegations which was false and manufactured by the respondent/wife. Appellant/husband and his father were even sent to jail. We would have no hesitation in observing that the appellant/husband as also his parents would have also suffered loss of image as a consequence thereof. Under such circumstances there is a clear inference of cruelty inflicted at the hands of respondent/wife upon the appellant/husband as also his parents. The attempt made by Mr. C.B. Goel learned counsel appearing for the respondent/wife to draw a distinction between an 'honourable acquittal' as opposed to an acquittal in favour of an accused by granting 'benefit of doubt' is not well founded. Acquittal in a criminal case for want of evidence is an acquittal on merit. There is no provision for 'honourable acquittal' in criminal trial as per criminal jurisprudence. A Division Bench of this Court in Bhag Singh Versus Punjab and Sind Bank 2006 (1) SCT 175 interpreted the term 'benefit of doubt' in criminal proceedings. It was noticed that where the acquittal is for want of any evidence to prove the criminal charge mere mention of 'benefit of doubt' by the criminal Court is superfluous and baseless. The Court as such termed such acquittal as an 'honourable acquittal'. In Shashi Kumar Versus Uttar Haryana Bijli Vitran Nigam and another 2005 (1) RSJ 718 a Division Bench of this Court was again dealing with the term 'honourable acquittal'. It was observed that the moment a criminal charge fails in a Court of law the person would be deemed to be acquitted of the blame. Under such settled position of law the husband cannot be denied his right of raising the ground of cruelty seeking dissolution of marriage on account of having been acquitted by the competent criminal Court and such decision of acquittal having been affirmed even by the Appellate Court. Furthermore the reliance placed by learned counsel appearing for the respondent/wife in Amit Kaushik and Amit Kumar Jain's case (supra) is misplaced. In both the aforenoticed judgments no complaint had been filed by the wife till the filing of divorce petition at the hands of the husband. The distinguishing feature in the present case is that the complaint had been lodged by the respondent/wife and the FIR had been registered in the month of May 2006 whereas the petition under Section 13 of the Hindu Marriage Act seeking dissolution of marriage on the ground of cruelty and desertion was instituted by the appellant/husband only on 18.07.2006 i.e. later in point of time and in which a specific ground had been raised as regards registration of a false FIR by the respondent/wife and the same amounting to cruelty. The judgments rendered by this Court in Amit Kaushik and Padam Kumar Jain's case (Supra) as such would have no applicability. There is another aspect of the matter. The parties in the present case have lived separately concededly since the year 2005. In other words the period of separation has been more than a decade. Such a separation is bound to create an unbridgeable distance between husband and wife. It may also be said that the marriage has irretrievably broken down. We are conscious that irretrievable break down of marriage is not a ground for divorce under the Hindu Marriage Act 1955. Be that as it may such a long separation between the appellant/husband and respondent/wife can certainly be taken as a weighty circumstance while considering severance of the marital tie. In Samar Ghosh Versus Jaya Ghosh 2007 (2) RCR (Criminal) 515 the Hon'ble Supreme Court had culled out illustrative cases where inference of 'mental cruelty' can be drawn. One of the illustrations drawn out was in the following words: “Where there has been a long period of continuous separation it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to severe that tie the law in such cases does not serve the sanctity of marriage; on the contrary it shows scant regard for the feelings and emotions of the parties. In such like situations it may lead to mental cruelty.” In view of the discussion above and considering the overall facts and circumstances of the case we are of the considered view that the present appeal merits acceptance. As a result the appeal is allowed and the judgment and decree dated 15.01.2009 passed by the learned trial Court is set aside holding that the respondent has caused mental cruelty to the appellant/husband and on that ground the marriage between appellant and the respondent is dissolved by decree of divorce leaving the parties to bear their own costs. Appeal stands allowed.

Sunday, November 6, 2016

False character assassination, False case, threat to life etc all amounts to Cruelty


IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: October 03, 2016 Judgment Delivered on: October 07, 2016 MAT.APP.(F.C.) 63/2016
SANTOSH SAHAY ..... Appellant
Represented by: Mr.A.K.Sharma & Mr.C.M. Sharma, Advocates.

versus
HANUMAN SAHAY ..... Respondent
Represented by: Mr.Arunav Tiwari, Advocate with respondent in person.

CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG HON’BLE MS. JUSTICE PRATIBHA RANI PRATIBHA RANI, J.

1. The appellant/wife is in appeal impugning the judgment and decree dated January 30, 2016 whereby the respondent/husband has been granted a decree of divorce on the ground of cruelty. For the sake of convenience we shall be referring the parties as ‘the wife’ and ‘the husband’.
2. HMA Petition No.73/10 (Old No.402/07) was filed by the husband seeking dissolution of marriage with the respondent on the ground of cruelty and desertion. The status of the parties at the time of marriage as pleaded in para 2 of the divorce petition was as under:
(i) Husband – 23 years – Hindu Bachelor
(ii) Wife – 18 years – Virgin
3. The marriage was consummated. The couple was blessed with two sons – elder one born on July 12, 2003 and younger one born on September 09, 2005.

4. It was an arranged marriage. The husband was belonging to a family of farmers though employed as teacher in Rajasthan. The father of the wife was a Government servant. As per the husband the wife was not comfortable leading a rural life in the village. When the husband got selected as a teacher in Delhi after one year of marriage, he brought his wife to Delhi. There were some temperamental differences between the husband and wife and of the wife with her in-laws. As per the husband the wife used to disrespect the guests visiting them and was not even preparing tea for them. His wife was indulged in some tantrik activities and performing ‘Tantrik Kriya’ which terrified him. She also used to light a diya during midnight and perform puja. She also put clove, cardamom and beetle nut under his pillow cover. The wife also used to tie half baked bread smeared with vermilion on her belly, prepare a effigy of flour and used to insert the iron nail (keel) in it and immerse it in Yamuna river. She made an attempt to strangulate him with her hands. She also used to avoid physical relations. Though he tried to make her understand the need to satisfy the sexual desires, she did not pay any heed and continued avoiding him. Not only that, she also accused him of having illicit relationship with


another lady. The husband has also pleaded that he is a non-smoker a teetotaller but he was defamed by her as an alcoholic and womanizer. This adversely affected his reputation in the family so much so that he even thought of committing suicide. The averments made in para 46 of the petition refer to the incident where after the wife left the matrimonial home, are extracted hereunder:
’46. That from that day the Petitioner had the sleepless night, the petitioner was always worried about his sons and their life. The petitioner never had sleep after that day. The respondent again one day when petitioner was sleeping came and again tried to strangulate him. The respondent was as if she was under some evil spell, taking the knife in her hand she tried to kill the petitioner. It was midnight time; the petitioner after getting rid of her went out of his house and keeps on roaming in the street like a mad whole night. The bad thoughts about his sons keep on haunting the Petitioner whole night. The petitioner after mustering up some courage and believing god went back to his house in the morning but to his shock and his dismay, the respondent was gone with his both son. That when enquired from the neighbours it transpired that the Respondent without informing anybody with her bag and baggage.’
5. The husband sought divorce on the ground of cruelty and desertion.
6. In the written statement the wife denied all the instances of cruelty and desertion alleged in the divorce petition. She pleaded that her husband was not a bachelor at the time of his marriage with her. His first wife committed suicide by jumping into the well because of the harassment and torture caused to her. After her marriage she was also severely beaten by her father-in-law Sh.Ram Sahay and brothers-in-law Sh.Ranjeet, Sh.Parbhas Dayal, Sh.Ram Gopal and Sh.Ram Babu. She also claimed that she was harassed on non-fulfilment of the dowry demand. While pleading that the parties were having normal conjugal relationship till the period March 28, 2007 to June 18, 2007, when the husband had gone to attend the marriage of her sister on June 19, 2007 at Alwar, Rajasthan, he returned without attending the marriage.
7. While raising preliminary objection about the maintainability of the divorce petition but admitting relationship of husband and wife between the parties, the wife pleaded it to be a case of she being harassed on account of dowry demand. She also pleaded that the husband had relations with other women. He always came late at night in drunken state and did not share bed with her in the same room for sleeping at night and had been neglecting not only her but also his matrimonial obligations.
8. While the husband examined himself as PW1 he also produced two more witnesses as PW2 – Kishan Lal and PW3 – Bhagwan Dass who visited them and were insulted by his wife.
9. The wife examined herself as RW1.
10. After considering the evidence adduced by the parties, learned Judge, Family Court dismissed the divorce petition on the ground of desertion for the reason that the divorce petition was filed before expiry of statutory period of two years from the date of desertion.
11. On the ground of cruelty, learned Judge, Family Court concluded as under:
(i) The allegations regarding demands of dowry by the wife are general, vague and ambiguous.

(ii) There was no evidence of her husband being earlier married or the wife committing suicide on account of dowry demand.
(iii) The wife has tarnished the reputation of the husband by assassinating his character that he was having relationship with a school teacher.


12. Written submissions running into 13 pages have been filed by the learned counsel for the appellant, major part of which refer to the pleadings in the divorce petition. The contentions raised in the written submissions to disprove cruelty by the wife can be noted as under:
(i) The husband was under graduate at the time of marriage. The fact that he not only completed his graduation but also got a Government job after one year of marriage reflects that the wife provided a peaceful and healthy environment at home.
(ii) The persons who were allegedly defamed or insulted by the wife have not been examined and even PW2 and PW3 did not depose about any rumour being heard by them which had the effect of adversely affecting the character of the husband.
(iii) The wife is only 8th Class pass and there is no question of she getting any job in place of her husband if something goes wrong with him.
(iv) Birth of two children out of this wedlock indicates her dedication and love for the husband.
(v) The allegation against her of making long calls from PCO on the false pretext, that she was calling her family, has not been established.
(vi) Name of the Tantrik who performed the puja is not disclosed.
(vii) No complaint was made to the police when the husband was allegedly tried to be strangulated by her.
(viii) She always expressed her desire to live with the husband which has not been considered by the Family Court.
(ix) The legal recourse taken by her by filing petition under Section 125 Cr.P.C. and FIR No.901/07 under Section 498A/406/34 IPC at PS Uttam Nagar against the husband and his family does not amount to cruelty.
13. Before dealing with the contentions raised on behalf of the wife we would like to note that in the written statement filed on August 23, 2007 by the wife she had made various defamatory allegations against the husband especially in preliminary objection No.5 which reads as under:
‘That the petitioner is a teacher and he has the relation with other women and he always came late at night with drinking condition and he was not shared, the room for sleeping at night and thus, the respondent has neglecting from the matrimonial relation as husband and wife, hence, this present petition is liable to be dismissed with cost.’
14. Thereafter in FIR No.901/07 under Section 498A/406/34 IPC, registered on December 07, 2007 at PS Uttam Nagar, apart from making allegations of she being harassed and tortured on account of dowry demand, without referring the month/year even by approximation she pleaded of being compelled to bring `50,000 from her parents for purpose of arranging a job for the husband. She apprised her parents about the physical and mental torture and the beatings given by her father-in-law as well younger brothers of her husband, she being dragged out of the house and again given beating by kicking and hitting with fist and blows. She talked to her father who sent `50,000 through her Fufa – Sh.Madan Lal and thereafter she was kept well for a few days. The FIR further reads as under:
‘mere pati Hanuman Sahay sarkari school mein master ki naukri par lag gaye hain. Jo kuch baad hi ek aurat jo mere pati ke school mein teacher hai ko ghar par laaye aure mujhe batlaya ki yeh meri dharma ki behan hai lekin 3⁄4 mah baad hi uske avaid sambandh sthapit kar liye aur


ab mujhe tatha mere bachhon ko beghar karke nikalna chahta hai. Mere pita ji biradari ke paanch-saat logon ko le kar iske paas (pati ke paas) aaye aur samjhane ki koshish ki jis par Hanuman Sahay (pati) ne kaha ki main to dusari aurat rakhunga. Jo chahe kar lo. Aap se anurodh prarthna hai ki meri shikayat par uchit karyavahi kar ke mera jeevan surakshit kiya jaaye.’
15. Perusal of the LCR shows that when the wife left the matrimonial house, both the children were left with the father. Thereafter one child was taken away by the wife. In MAT Appeal No.10/2012 filed by the husband the order dated February 09, 2012 passed by this Court records his concern as father for the child Yash who was taken by the wife to the village. He was studying in Air Force School at Palam, Delhi. The said order reads as under:
‘the only grievance of the appellant is that the child is studying in a village and he wants that the child should study in Air Force School at Palam, Delhi where he was earlier studying. The appellant/husband has also agreed to bear the school expenses of the child apart from maintenance of `6,000/- which he is already paying to the respondent/wife.
He has also stated that he has no objection if the respondent/wife continues to stay in the house of the appellant at Mohan Garden, Uttam Nagar, where she was earlier residing. The learned counsel for appellant has stated that appellant has no objection if custody of child remains with respondent/wife as is ordered by Ld. Trial Court. The respondent is present in person. The counsel for respondent, after taking instructions from her, has stated that the respondent has no objection and has agreed that she will bring the child Yash in Delhi and she has also no objection in staying in the aforesaid accommodation and also sending the child to the Air Force School as per wish of appellant/husband. Appellant/husband has agreed that it will be his responsibility to get the child admitted in the said school.’
16. It is an admitted fact, recorded by the Family Court, in the order on application under Section 24 of the Hindu Marriage Act, 1955 that the house which was purchased by the husband in Delhi is in use and occupation by the wife since beginning and it is the husband who is residing in a rented accommodation. Thus the allegation made by the wife that he intended to dispossess them from the house, which was purchased by the husband by availing loan facility, is contrary to the factual situation noted in the two orders (i) by the Family Court while disposing of an application under Section 24 of the Hindu Marriage Act, 1955; and (ii) by this Court in MAT Appeal No.10/2012.
17. Testimony of PW2 and PW3 proved that when they visited the house of the appellant, they had to face insult and humiliation at the hands of the wife. They were produced by the husband not to prove that his character has been assassinated but to bring on record the conduct of his wife even with the guests visiting their house.
18. So far as character assassination of the husband is concerned, it is a matter of record that such accusations have been made not only in the written statement filed on August 23, 2007 but also thereafter in the FIR registered on December 07, 2007. It may be relevant to refer here that after taking the plea in the written statement that the husband is not only a drunkard but also lives in adultery and failed to perform matrimonial obligations, she pleaded of being harassed after the marriage and physically assaulted for not meeting the dowry demands. The written submissions are just contrary to that. Wherein she projected herself to be a good wife providing right kind of environment to the husband for study and preparing for competition for government job, she could not have done so had she been harassed and physically tortured on above grounds. It may be relevant to mention here that the marriage was solemnised on May 01, 2001 and FIR making such types of allegations was lodged on December 07, 2007, almost after a period of six and a half years of marriage.
19. The averment made in the written statement that the husband and in- laws tried/threatened 
to set her on fire by pouring kerosene oil on her is conspicuously absent in the FIR. Making such type of accusations in the written statement in itself amounts to causing mental cruelty to the husband especially when his entire family has been blamed for giving beatings on non-fulfilment of the dowry demand. The wife has not examined either her father or her Fufa to establish that the alleged demand of `50,000 was fulfilled for arranging a job for the husband nor this fact is pleaded in the written statement. It is a matter of record that he got the job on merits. The husband has education to her sons in a reputed school in Delhi even after the wife left him and continue doing so even after litigation started. Even if all the pleas by the wife are considered to be proved, she could not establish herself to be a victim of matrimonial offence.
20. With a view to examine the correctness of the finding returned by the learned Judge, Family Court that the husband was subjected to cruelty, we have re-appreciated the entire evidence. First of all we may note that plea of the wife that her husband was already married and his first wife committed suicide by jumping into a well, which was concealed at the time of her marriage to the respondent, has not been substantiated by any material – oral or documentary. Suffice it to note here that a case of unnatural death of young bride and that too in a village can never be kept a secret. Such type of unnatural deaths invite penal action. We restrict our discussion only on the under mentioned four grounds for the reason if these grounds are substantiated by the respondent/husband, we need not delve any further:- (1) The wife insulting and humiliating not only the husband and in-laws but also the guests visiting their house.
Apart from the version of PW-1 – the husband, PW-2, Kishan Lal has also stated that on his visit to the house of the parties whenever the appellant/wife was asked to prepare tea, she used to abuse without caring for the presence of the guests. PW-3, Bhagwan Dass visited the house of the parties on the occasion of the birth of their younger son. He has also stated that without bothering for the presence of other guests the wife was abusing the husband that he had not properly invited her parental family. (2) Assassinating the character of the husband as leading an adulterous life and projecting him as drunkard.
Not only in the written statement filed on August 23, 2007 but also in the FIR registered on December 07, 2007 the husband has been accused of having illicit relationship. However, neither in the written statement nor during cross-examination of PW-1 the name of the lady has been disclosed. It may be noted that in the written statement the illicit relationship was stated to be with some women but in the FIR the lady was referred to be a teacher in the same school without disclosing her name. No evidence was led by the respondent/wife to bring on record that some lady was living in the same house along with them as his ‘Dharam Behan’ or that after 3-4 months her husband established illicit relationship with her. She has not led any evidence in support of these allegations or confronted the husband during his cross- examination Legal position is well settled that making of allegations against the spouse assassinating his character amounts to mental cruelty. In the decision reported as (2003) 3SCR 607, Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, the allegations of unchasity and extramarital relations were made by the husband against the wife. The Supreme Court considered it to be constituting mental cruelty and held as under:
‘Levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra-marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife.
Such aspersions of perfidiousness attributed to the wife, viewed in context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come
to be firmly laid down by the Supreme Court.’ In the instant case the spouse making such allegations is wife who has branded her husband as a drunkard and leading an adulterous life. The effect of such allegations on the state of mind of the husband is reflected in para No.44 of the divorce petition. The husband has pleaded that he felt like committing suicide when his wife made such type of accusations despite he being a non-smoker and teetotaller but desisted for the sake of his son. (3) Accusing the husband and his entire family of treating the wife with physical and mental cruelty on non-fulfilment of the dowry demand.
The marriage between the parties was solemnized on May 01, 2001. For more than six and a half years they lived together initially at his native place, then in Delhi. There was no averment in the written statement of any specific dowry demand being fulfilled. For the first time at the stage of registration of FIR in December, 2007 the allegations were made of fulfilment of the demand of Rs.50,000 to arrange a job for the husband and the money being sent by her father through her uncle (Fufa) Sh. Madan Lal, without even specifying the month/year of meeting the demand. The husband has qualified SSB just after one year of the marriage and is employed as a teacher in MCD school. This shows that he has qualified the competitive examination and got selected on merits. Absence of any such pleading in the written statement filed just four months prior to the registration of FIR is indicative of the falsity of such allegations. We are not informed about the fate of the investigation in the above FIR No. and whether the trial has been concluded or not. In this case we are dealing with the matrimonial offence which is required to be proved on probability and not on the standard of ‘proof beyond reasonable doubt’ as required in a criminal trial. We have drawn the above inference on the basis of averments made in the written statement dated August 23, 2007 and in the FIR dated December 07, 2007.
(4) Performing ‘Tantrik Kriyas‘ through a Tantrik and herself, the acts under the evil spell i.e. attempt being made on the life of the husband repeatedly to strangulate him and attack him with a knife.
In para Nos.38 and 39 of the divorce petition the husband had pleaded about the ‘Tantrik Kriyas’ being performed by the wife through Tantrik as well herself. In para No.45 of the petition the husband has pleaded that one night his wife tried to strangulate him which filled him with terror and shock. In para No.46 of the petition he again pleaded that he was spending sleepless nights worrying about his life and of his son. Another attempt made on his life by his wife was also by trying to strangulate him. His wife appeared to be under some evil spell and was having the knife in her hand at mid-night. He got out of the house and kept roaming on the street, feeling haunted. In the morning when he returned he found his wife missing with both the sons. He informed the incident telephonically to his father-in-law.
21. In the written statement the above averments have been simply denied by the wife.
22. We do not want to delve about motive behind such ‘Tantrik Kriyas’ or the intention behind keeping clove, cardamom and beetle nut under his pillow cover. The question to be decided is whether such acts by the wife constitute mental cruelty. A detailed analysis is available in a well reasoned decision reported as AIR 1961 P&H 125 P.L.Sayal Vs. Smt.Sarla Rani, in which numerous decisions have been cited and discussed on this subject. In the above noted case, it was conceded by the wife that some kind of magical charm or tawij or potion was administered by her to the petitioner/husband sometime in the end of 1951. Thereafter, the husband became ill. Apart from nervous breakdown he suffered various other complications. This was pleaded as an act of cruelty to seek judicial separation under Section 10 of Hindu Marriage Act, 1955. The petition was dismissed and impugned in appeal bearing FAO No. 72-D/1957 (decided on September 22, 1960).
  
23. The question for determination in the appeal was whether the above act of the wife constitutes such cruelty as to cause a reasonable apprehension in the mind of the husband that it was harmful or injurious for him to live with her. While deliberating on the above subject it was held:-
‘6. Considering the state of mind, the status and the prevailing notions of the strata of society to which the parties belong, the conclusion appears to be irresistible that a state of tension exists between the husband and the wife and the husband, at any rate, is afraid of living with his wife lest such a thing should happen again. Admittedly, the parties are not living together and their marital life has ceased to exist from 1953. It is to be seen in this context whether the conduct of which the petitioner complains comes within the ambit of legal cruelty according to the meaning attached to this word by eminent authorities.
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11. In my judgment, the crucial point to determine is whether there is reasonable apprehension in the mind of the petitioner of a similar act from his spouse in future. The evidence in this case leaves no doubt in my mind about the reality of this fear in the mind of the petitioner. I also think that the fear in the mind of the petitioner, in the context and circumstances of this case, is not groundless and is based on the instinct of self- preservation. He has suffered a great deal from the hands of an ignorant wife and no amount of repentance can undo the wrong that has been wrought. In this situation and state of affairs, it would be futile to expect the petitioner and the respondent to live a normal married life again and it would be a plain denial of justice to keep them within the bonds of marriage.’
24. Reverting to the facts of the instant appeal, we find that the acts of cruelty attributed to the wife have been proved by the husband not only by his own testimony but also by examining two other witnesses who visited their house and left insulted and humiliated. The allegations of dowry demand, physical and mental harassment made by the wife in the written statement and even going to the extent that she was threatened to be set on fire by putting kerosene oil on her are of very serious nature. Most of the allegations made in the written statement including threat to set her on fire are missing in the FIR No.901/07 under Section 498A/406/34 IPC, registered at PS Uttam Nagar just after four months of filing the written statement. The wife has been assassinating the character of the husband by accusing him of having illicit relationship with his colleague or projecting him as an alcoholic without there being even an iota of evidence to establish the above fact even on probabilities. We have unrebutted testimony of the husband that he is a non-smoker, teetotaller and was compelled to walk out of the house fearing threat to his life because of the ‘Tantrik Kriyas’ being performed by his wife. This is sufficient to create fear in his mind about his safety. The husband cannot be made to spend sleepless night fearing for his life.

25. The admitted fact that he purchased a house in Delhi after availing home loan facility and has given to his wife to live there by shifting to a rented accommodation, bearing the maintenance and education expenses of both sons and even ensuring that his children study in a good school in Delhi i.e. Air Force School Delhi reflect that he is a caring father having no intention to sell either the house or intend to dispossess them to settle in life with another lady.
26. The disgusting accusations made by the wife against the husband of he being in illicit relationship, referring him as a drunkard are serious in nature assassinating his character and harming his reputation as a teacher. She has failed to prove any of the above but yet resisting the divorce which if accepted, would make life of the two even more complex and unbearable. The allegations made not only in the written statement but also in the FIR against the husband and his entire family have the effect of causing mental cruelty to him and his entire family. It is now beyond cavil that if a false character assassination allegation is made by either spouse it would invariably constitute matrimonial cruelty to entitle other spouse to seek divorce.
27. The findings recorded by the learned Judge Family Court in our opinion are fully borne out from the material on record and cannot be faulted with. Therefore, the decree of divorce granted by the Family Court has to be upheld.
28. The appeal is dismissed.
29. LCR be sent back alongwith copy of this order.
30. No costs.
PRATIBHA RANI (JUDGE) PRADEEP NANDRAJOG (JUDGE) October 07, 2016