Protection of Women from Domestic Violence Act, 2005 – Section 12 – Hindu Marriage Act, 1955 – Section 13(1)(ia) – dissolution of marriage against wife on the ground of cruelty – filling of false criminal complaints against a spouse amounts to cruelty – Though the proceedings under the Domestic Violence Act, 2005 are not criminal proceedings, the principle laid down by the Supreme Court in K. Srinivas (supra) is equally applicable to such proceedings. What is relevant is that the appellant was subjected to legal proceedings on the basis of false and unsubstantiated allegations, which would have caused embarrassment to the appellant and his family members.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI
Delivered on: 23.05.2016
ACJ ….. Appellant Through: Mr. R.K. Sharma, Advocate versus RJ ….. Respondent Through: Mr. Vinish Phogal and Mr. Y.S. Chouhan, Advocates.
VIPIN SANGHI, J.
1. The present appeal under
Section 28 of the Hindu Marriage Act, 1955
(hereinafter referred as ‘HMA’) has been preferred to assail the judgment & decree dated 31.07.2012 passed in HMA No.89/2006 by the Additional District Judge (ADJ), Delhi, whereby the learned ADJ dismissed the petition preferred by the appellant/husband under Section 13(1)(ia) of the HMA, seeking a decree of dissolution of marriage against the respondent/wife on the ground of cruelty.
2. The facts as delineated in the petition are that the marriage between the parties was solemnized on 19.05.1997 at Girdi, Bihar, according to Hindu rites and ceremonies. After the customary performance of the Gauna Ceremony on 10.12.1997, she was brought to the matrimonial home and the marriage was consummated. No issue was born out of the wedlock.
3. The appellant asserted three specific instances of insult and injury against the respondent. Firstly, the appellant asserts that shortly after the respondent’s arrival to Delhi, she started pressurizing him to move out of the matrimonial home and live separately from his parents, but the appellant was not agreeable. After that, her behaviour changed towards the appellant and his family members. It is alleged that on 20.12.1997, at around 11.00 p.m. while the parties were sleeping, the respondent, without any provocation hit him on his eye and told him that she wants to make him blind. He informed his parents about the incident the very next morning. Secondly, he asserts that on 02.02.1998, one Sh. Bhim Singh Paswan-a family friend, visited their house and the appellant asked her to prepare tea; on this, she slapped him and told him that he deserves a slap, not tea. He felt humiliated and remained mentally upset for days. Thirdly, the appellant claims that on 10.02.1998, one of his relatives, Sh. Gangadhar visited the home of the parties. The father of the appellant requested her to get a glass of water; upon this, she told him that she is not a maid and started misbehaving/using abusive language. He claims that because of such erratic behaviour of the respondent, he could not sleep for nights and suffered mental trauma. He further claims that the appellant and his family members tried their best to keep the respondent happy, but she was adamant on living separately from his parents. The father of the respondent visited the appellant on 15.04.1998, and informed him that the respondent did not wish to live in Delhi and wanted a divorce. The respondent left the matrimonial home on 16.04.1998. He asserts that the respondent and her parents did not provide him with their address; therefore, he could not bring her back to the matrimonial home. Thereafter, there has been no correspondence between the parties.
4. In the written statement filed by the respondent-wife, she denied all the allegations. She claimed that the appellant and his family members were making dowry demands. She stated that at the time of marriage, the father of the respondent had given an amount of Rs. 3,00,000/- as dowry. After the marriage, she was left at her parental home with an assurance that she would soon be called to Delhi to join her matrimonial home. In the month of November 1997, the appellant asked her to bring an amount of Rs. 2,00,000/- if she wanted to join the matrimonial home, since the father of the respondent had not provided sufficient dowry at the time of the marriage. The father of the respondent paid the amount of Rs. 2,00,000/- to the father of the appellant and, thereafter, on 10.12.1997, she was taken by the appellant to the matrimonial home. In the month of January 1998, the father of the appellant asked her to bring an amount of Rs.50,000/-, but she refused. Thereafter, the behaviour of the appellant and his family members changed drastically. The family members of the appellant started torturing her mentally. The appellant refused to perform his conjugal duties. It is stated that on many occasions, she was physically abused by the mother and sister of the appellant. She stated that the appellant misappropriated her Stridhan, due to which, she filed a complaint with the CAW Cell. She further stated that in the month of April, the father of the respondent visited Delhi. He saw her poor health condition, and requested the appellant and his family members to allow her to accompany him to Bihar. Thereafter, she left for Bihar with her father. In the month of July 1998, the respondent requested the appellant to take her back to the matrimonial home, upon which, he asked her to bring a sum of Rs.50,000/-, if she wanted to come back. On 10.12.1998, the respondent came back to the matrimonial home along with her father and cousin brother. She was refused entry and since then she has been residing with her uncle in Delhi. The incidents dated 20.12.1997, 02.02.1998 and 10.02.1998 were denied. She stated that the same are concocted.
5. In the replication filed by the appellant, he reiterated and reaffirmed his stand. The appellant categorically denied the allegations with regard to the dowry demands. He stated that previous complaints filed by the respondent are false and were withdrawn by her. Thereafter, she again filed a complaint with the CAW Cell.
6. After the issues were framed, both the parties led evidence in support of their case. The Trial Court after assessing the evidence placed on record dismissed the petition.
7. The Trial Court came to the conclusion that the version of the petitioner/appellant regarding the first incident dated 20.12.1997 aforesaid was not believable, as there are contradictions in the testimonies with regard to the date of incident, and with regard to whether the petitioner was taken to hospital for the treatment.
8. In relation to the second incident dated 02.02.1998, the Trial Court concluded that there is inconsistency and contradiction in the testimonies of the witnesses with regard to the presence of mother and father of the appellant at the time of the incident. The Trial Court also concluded that Sh. Bhim Singh Paswan (PW-4) is a tutored and an interested witness. It was further observed that the version of the petitioner/appellant is improbable, as no one would again ask a daughter-in-law to prepare tea, if she is already misbehaving in the manner alleged.
9. The Trial Court, in respect of the third incident dated 10.02.1998, observed that the petitioner/appellant, in his testimony, stated that he asked the respondent to bring a glass of water, whereas the other witness claimed that the father of the appellant asked the respondent to get a glass of water. It was also observed that Gangadhar (PW-5) stated that at the time of the incident, the appellant’s sister was also present, but none of the other witnesses stated so. The court further concluded that there are contradictions in the statement of the petitioner/appellant with regard to the respondent raising her hand to slap, as none of the witnesses stated the same. Therefore, incident dated 10.02.1998 was also disbelieved.
10. The Trial Court further concluded that the letter dated 30.08.1998 (Ex. PW1/2) written by the respondent to the father of the petitioner appears to be a letter written out of frustration. The parties had lived together for a period of four months, which is very less to conclude that the marriage has in any manner broken down. The Trial Court also concluded that the dismissal of the petition filed by the respondent – for restitution of conjugal rights under section 9 of the HMA, does not entitle the petitioner/appellant to get his petition under section 13 (1)(ia) of HMA allowed, as the same does not establish the ground of cruelty. The Trial Court further concluded that the CAW Cell complaint filed by the respondent cannot be considered as a ground for divorce, as the same is still pending. Consequently, the petition was dismissed. Hence, the present appeal.
11. Learned counsel for the appellant submits that since the very beginning of the matrimonial relationship, the respondent started misbehaving with the family of the appellant. The respondent started making unreasonable demands to live separately from the parents of the appellant. The appellant refused to live separately from his parents, expressing that he is their only son and the only support system for his old age parents. Thereafter, the behaviour of the respondent changed drastically towards him and she started behaving erratically. He submits that the specific incidents mentioned in the petition were proved by the testimonies of the witnesses. They clearly establish that the appellant was subjected to mental and physical cruelty by the respondent repeatedly.
12. Learned counsel submits that the Trial Court failed to appreciate and discuss the testimony of the independent witness, i.e. Sh. Chiranjee Lal Raghav (PW-3), the President of the Residence Welfare Association, Paschim Vihar, New Delhi. He asserts that Sh. Chiranjee Lal Raghav has known the appellant and his family for over 20 years. Sh. Chiranjee Lal Raghav, in his evidence by way of affidavit, clearly stated that the present matrimonial dispute was never about dowry demand and harassment. He also deposed that he was present at the Police Station, Paschim Vihar on 05.08.1999, when the negotiation between the families of the parties were undertaken, and the father of the respondent demanded a separate residence for the respondent. Learned counsel submits that the testimony of Sh. Chiranjee Lal Raghav has gone unchallenged and proves the case of the appellant.
13. Regarding the incident dated 02.02.1998, learned counsel submits that the testimony of the Sh. Bhim Singh Paswan (PW-4), was disbelieved by the Trial Court merely on the ground that he stated that his children had taken coaching from the appellant. Therefore, he was assumed to be a tutored and an interested witness. He submits that the Trial Court erred in concluding that he is an interested witness. This finding is without any basis. He further submits that in matrimonial disputes, family members, friends and neighbours are the most relevant and natural witnesses. Therefore, Sh. Bhim Singh Paswan (PW-4) is a credible witness. It would be inappropriate to expect an outsider to come and depose. Reliance is placed on