All Live-in Relationships Are Not Covered Under Provisions Of Domestic Violence Act: Bombay HC [Read Judgment]...

All Live-in Relationships Are Not Covered Under Provisions Of Domestic Violence Act: Bombay HC [Read Judgment]...

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 82 OF 2017

Reshma Begum W/o Gajanfar Kazi,                                            APPLICANT

Aged 30 years, Occ. Household,

R/o. At present N­6, A, 120 CIDCO,

Aurangabad, Taluka & Dist. Aurangabad

V E R S U S

[1]     The State of Maharashtra                                                  RESPONDENTS

[2]             Gajanfar Kazi @ Jawed S/o Kazi Qaiseruddin, Aged 41 years, Occ. Mechanic, R/o. Katkatgate, Aurangabad, Taluka & Dist. Aurangabad

Mr. N.R. Shaikh, Advocate for the Applicant

Mr. A.R. Kale, A.P.P. for the Respondent No.1­State

 Mr. H.I. Pathan, Advocate for the Respondent No.2

CORAM : MANGESH S. PATIL, J. Reserved On : 29 June 2018

Pronounced On : 25 July 2018

J U D G M E N T :

1.                 Rule. Rule is made returnable forthwith. By consent, the matter is heard finally.

2.                 Very short issue that arises for determination in this Revision is as to the interpretation of provision of Section 2 [f] of the Protection of Women from Domestic Violence Act, 2005 [hereinafter referred to as 'the D.V. Act']. The factual matrix leading to revision can be put in a short compass.

3.                 The applicant who belongs to Jain Hindu community was married to one Shantaram Mahadu Ughade and the couple begotten a child out of the wedlock. It was averred that, that marriage was brought to an end by virtue of a customary divorce on 15.10.2011. It is averred that she thereafter came in contact with the respondent No.2 who is a Muslim by religion. The acquaintance blossomed into an affair. He was already married and was having children. She got converted to Islam and the couple entered into a marital tie in presence of a Kazi on 21.07.2012. The couple also got a child out of such relation on 29.04.2013. However, a dispute arose and the couple separated. She filed a proceeding under Section 12 of the D.V. Act against him in the Court of Judicial Magistrate First Class at Aurangabad bearing Criminal Misc. Application No.28 of 2013.

4.                 The respondent No.2 contested the proceeding primarily on the ground that the applicant was already married and so was he. The marriage between the two was not legally possible, since they were already having subsisting marital relation. He also denied even that she was staying with him in some kind of relation.

5.                 The learned Magistrate allowed the application holding that the relationship between the two was in the nature of marriage and was covered by Section 2 [f] of the D.V. Act and granted various reliefs.

6.                 Being aggrieved, the respondent No.2 preferred Appeal under Section 29 of the D.V. Act bearing Criminal appeal No. 156 of 2015. The learned Addl. Sessions Judge by the impugned Judgment and order dated 12.01.2017 relying upon Judgment of the Supreme Court in the case of Velusamy Vs. D. Patchaiammal; 2010 (3) Bom. C.R. (Cri.) 764 (S.C.) concluded that the applicant and the respondent No.2 were not qualified to enter into a legal marriage since they were already married and their marriages were in subsistence. The relationship was not covered by Section 2 [f] of the D.V. Act. She was not entitled to take recourse to the provision of Section 12 of the D.V. Act. The appeal was allowed and the Judgment and order passed by the Magistrate was set aside. Hence, this Revision.

7.                 The learned Advocate for the applicant submitted that since the applicant had already got the customary divorce in the form of execution of Notarized Deed on 15.11.2011, her first marriage had come to an end. Since the respondent No.2 is Muslim, his personal Law permits him to solemnize the second marriage. Since there is evidence in the form of testimony of Kazi and a Nikahnama demonstrating that the marriage was solemnized between the applicant and respondent No.2, the relationship between the two was in the nature of marriage within the meaning of Section 2 [f] of the D.V. Act. The couple had also has a child out of the relation. There was a birth certificate of the child which demonstrated that the couple was holding themselves out as husband and wife and the relationship was duly covered under that provision. The observation and the conclusion drawn by the Magistrate was unassailable. The learned Addl. Sessions Judge has ignored these aspects and without any cogent and convincing reason, quashed and set aside the Judgment of the Magistrate. There is no sufficient legal basis to substantiate the interpretation of the learned Addl. Sessions Judge. The impugned Judgment and order is not tenable in law and be quashed and set aside, thereby restoring the Judgment and order passed by the Magistrate.

8.                 Though  the  respondent  No.2  has  been  disputing  all  the averments, there is enough material to show that the applicant and the respondent No.2 had established a kind of relationship. They had entered into marriage ceremony in presence of a Kazi [PW 2].  A Nikahnama was executed [Exhibit 35]. There is also a Birth Certificate showing that a child was born to the applicant and the respondent No.2 was shown as the father of the child.

9.                 However, it is necessary to ascertain, whether such kind of relationship is covered by the definition of domestic relationship as contained in Section 2 [f] of the D.V. Act. The definition reads thus : “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

It is important to note that the interpretation put on the definition and particularly the words 'relationship in the nature of marriage' by the Supreme Court in the case of Velusamy [supra] to mean :

[a]                                     The couple must hold themselves out to society as being akin to spouses.

[b]             They must be of legal age of marry.

[c]              They must be otherwise qualified to enter into a legal marriage, including being unmarried.

[d]             They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Even in the case of Indra Sarma v. V.K.V. Sarma; AIR 2014 S.C. 309, a comparison has been made between the relations which are in the nature of marriage and live in relationship and guidelines have been culled out to distinguish between the two.

2.             

3.             

4.             

5.             

6.             

7.             

8.             

9.             

10.                       Perusal of these decisions makes it abundantly clear that not all the live in relationships are covered by the provision of Section 2 [f] of the D.V. Act. It is only those which qualify to be the relationship in the nature of marriage which are governed by that provision. In order to constitute such relationship, a legal marriage between the two must be possible

11.            There is one more aspect which needs such an interpretation to be put to words 'relationship in the nature of marriage' contained in Section 2 [f] of the D.V. Act. It is well recognized principle of interpretation of statute that a statute should be interpreted in a manner which would not promote illegality. It has made a provision to enable a woman in a relationship in the nature of marriage to seek various remedies under the D.V. Act. One cannot put an interpretation to Section 2 [f] of the D.V. Act which would promote an adulterous relationship which is an offence punishable under Section 494 of the Indian Penal Code. Therefore, these words will have to be interpreted in a conducive and harmonious manner so as not to offend a penal provision contained in the Code. Therefore looked at from this angle, one cannot interpret this provision which would offend any law. The legislature in its wisdom has enacted the Law so as to cover and protect not only a legally wedded wife but has gone a step further to bring in its ambit a woman who has been in a relationship in the nature of marriage. Use of word 'marriage' to qualify the relationship is conspicuous and the only interpretation that can be put is that the marriage between the couple must be legally possible. Any other interpretation which would offend any other law would not be permissible.

12.                                   Once it is clear that in order to enable the applicant to claim any relief under the D.V. Act the relation between her and the respondent  No.2 was not in the nature of marriage, she is clearly not entitled to claim any relief under that Act. Admittedly, on her own admission, her first marriage was still in subsistence, and if that be so, she could not have married legally with the respondent No.2 albeit he is a Muslim and his personal law permits him to solemnize the second marriage.          In view of such state of factual matrix and the evidence, the observation and the conclusion drawn by the learned Addl. Sessions Judge that the relationship between these two did not fall into the 'domestic relationship' as defined under Section 2 [f] of the D.V. Act is unassailable.   The Revision is dismissed.

The rule is discharged.

[ MANGESH S. PATIL, J. ]

Whether high court and lower court can waive period of six month for seeking divorce by mutual consent?

The division bench of this court in the decision reported in AIR 2009 Bombay 12 has referred to rationale and reasons underlying the provisions of section 13-B of the Hindu Marriage Act, 1955

and the Supreme Court in the decision reported in (2009)10 Supreme Court Cases 415, has ruled that the Supreme Court can in exercise of extraordinary powers under Article 142 of the Constitution of India convert a proceeding under section 13 of Hindu Marriage Act, 1955 into one under section 13-B of Hindu Marriage Act, 1955 and pass decree of divorce by mutual consent without waiting for the statutory period of six months. The Supreme Court has also observed that neither civil courts nor even high courts can pass orders before the period prescribed under relevant provisions of the Act or on the grounds not provided for under sections 13 and 13-B of the Hindu Marriage Act, 1955.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 BENCH AT AURANGABAD

 WRIT PETITION NO. 4528 OF 2015

1. Swati W/o Ramakant Patil,

2. Ramakant S/o Ratan Patil,

vs

 CORAM : SUNIL P. DESHMUKH, J.

 DATED : 7th MAY, 2015

Citation: 2016 (5) ALLMR390

1. Rule. Rule made returnable forthwith and heard the learned counsel for petitioners.

2. The petitioners are before this court aggrieved by order dated 8th April, 2015 passed by learned Civil Judge, Senior Division, Jalgaon, in Hindu Marriage Petition No. 83 of 2015, rejecting their request to waive statutory period required under section 13-B (2) of the Hindu Marriage Act, 1955 for divorce by mutual consent. 

3. The facts as emerging are that, petitioner No. 1 is wife whereas petitioner No. 2 is husband. Their marriage was solemnized on 15-04-2012 at Sangmeshwar, however, the couple could reside together hardly for four days and from 19-04-2012, petitioner No. 1 started residing with her parents, having moved out of matrimonial house, due to incompatibility and temperamental issues. Attempts to reconcile relations have failed and ultimately the petitioners purported to take divorce on 14-12-2014 under aegis of respected members of their community, by execution of an affidavit. The petitioners had decided not to claim any monetary benefits from each other and had also undertaken not to lodge any cases against each other and further agreed to file proceedings for divorce by mutual consent.

4. Accordingly, Hindu Marriage Petition No. 83 of 2015 seeking dissolution of marriage and divorce by mutual consent was filed on 18-02-2015 in the court of Civil Judge, Senior Division, Jalgaon. The learned Judge having regard to requirement of intervening statutory period of six months for divorce by mutual consent, has kept next date in the matter on 18-08-2015.

5. During pendency of said proceedings, the petitioners had filed an application Exhibit-10 on 08-04-2015 seeking waiver of expiry of the statutory period. Petitioners had referred to that the marriage has been dissolved before the community and their relationship as husband and wife has come to an end. The petitioners are not at all interested to cohabit with each other. It is referred to in the application that they are young and their second marriage is also arranged. In view of aforesaid, they prayed for waiver of expiry of statuary period of six months prescribed under section 13-B (2) of the Hindu Marriage Act, 1955 and for passing decree of divorce by mutual consent.

6. Section 13-B (2) of the Hindu Marriage Act, 1955 reads thus- “13-B Divorce by mutual consent -

(1) …....

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree”.

7. It appears that decision of this court in writ petition No.1381 of 2010 (Rakesh Parekh Vs. State of Maharashtra) as well as decision of learned single judge in the case of Sau Sonali W/o Manishkumar Chandak and another Vs. Nil reported in 2008(1) All MR 227 were relied on. The court had considered that in the case of Rakesh Parekh, he had already filed a petition for divorce under section 13 of the Hindu Marriage Act, 1955, and as such, decision in said case would not be applicable to the request, for, facts would not be similar. It appears to have been considered by the court that the decision in the case of Sau Sonali referred to above had been in view of exceptional hardship being faced, the High Court under inherent powers was pleased to grant waiver of statutory period, and as such, said decision would not apply to present situation. The court, as such, went on to reject application under Exhibit-10.

8. The petitioners with a view to support their request for waiver of expiry of six month period pursuant to section 13-B(2) of the Hindu Marriage Act, 1955 for divorce by mutual consent have annexed to the memo of petition a photocopy of the decision dated 03-08-2007, in the case of Sau Sonali W/o Manishkumar Chandak and another Vs. Nil reported in 2008(1) All MR 227, wherein the court appears to have taken into account exceptional hardship being faced by the petitioners-therein as well as that they were living separately and all efforts for reconciliation had failed, and thus, claim for exemption (waiver) of statutory period of six month for divorce by mutual consent is allowed.

9. Learned counsel Mr. Deshmukh, refers to above decisions and relies on said judgments as well as judgment rendered by a division bench of this court in the case of Satnosh Lalmani Tiwari Vs. Mrs. Aardhana Devi Santosh Tiwari reported in AIR 2013 Bombay, 12. In that case, the petition had been filed by husband for divorce under section 13 (1) (i-a) of the Hindu Marriage Act, 1955 on the ground of cruelty, which was dismissed. Appeal was preferred and during pendency of appeal, proceedings were sought to be converted into a petition for divorce by mutual consent. The division bench after taking into account the decisions reported in AIR 1986 Andhra Pradesh 167 (K. Omprakas Vs. Nalini), as well as 1989 Madras Law Journal Reports 319 (Santhana Krishnan Vs. Poongothari Ammal) and AIR 1998 Kerala, 97 (Sreelatha Vs. Deepthy Kumar), had considered that as parties were residing separately since 2006 and the petition for divorce was filed in 2010, which was dismissed in June-2012 and appeal was filed in July-2012 and as consent terms were also filed in said proceedings, there is no possibility of reconciliation between the parties and their decision to have divorce is not influenced by any external factors including coercion, intimidation or undue influence by any person including the parents. The proceedings appear to be given treatment as proceedings for divorce by mutual consent and, as such, in said case the division bench has considered that waiting period can be waived in a suitable case by the appellate court, when the court is fully satisfied on the proved facts that marriage tie should be severed by mutual consent immediately as the parties have been living separately for more than the time prescribed under section 13-B (2) of the Hindu Marriage Act, 1955 and that they have

been fighting for sufficiently long period. The High court had considered that the appellate court may not wait for further period of six months after filing of application seeking conversion of petition into a petition for divorce by mutual consent.

10. Learned counsel for the petitioners Mr. Deshmukh also relies on the decision in case of Mittal Ramesh Panchal and Manoj Dayalal Panchal Vs. Nil reported in 2014 AIR Bombay 80 : 2014 (3) All MR 60 : 2014 (3) Mh.L.J. 755 : 2014 (4) LJSoft 46, wherein customary divorce appears to have been taken by the parties. The parties had got remarried acting under the bonafide belief that their marriage has come to an end on execution of deed of divorce on 13-06-2011 before a notary. However, they subsequently realized this may not be valid in law and proceedings under Section 13-B of the Hindu Marriage Act, 1955 seeking divorce by mutual consent, were filed. A spouse had applied for visa, which was not issued, for, divorce under the deed is not a decree in the eye of law. In the circumstances, the court considered that no fruitful purpose could be achieved by forcing the parties to wait for six months. The division bench in the peculiar circumstances of that case has considered invoking of inherent powers under Codes of Procedure. That was a matter being considered by the high court in the appeal, after the family court rejected request for waiver of statutory period.

11. Learned counsel further refers to a decision of the Supreme Court in the case of Devinder Singh Narula Vs. Meenakshi Nangia reported in 2012(5) ALL M R (S.C.) 895 : 2012(6) Mh.L.J.(S.C.) 769 : 2012(10) LJSoft (S.C.) 16. The Supreme Court in paragraphs No. 12 and 13 of the judgment has observed thus-“12. It is quite clear from the materials on record that although the marriage between the parties was solemnized on 26.3.2011, within 3 months of the marriage the petitioner filed a petition under Section 12 of the Hindu Marriage Act, 1955, for a decree of nullity of the marriage. Thereafter, they have not been able to live together and lived separately for more than 1 year. In effect, there appears to be no marital ties between the parties at all. It is only the provisions of Section 13-B(2) of the aforesaid Act which is keeping the formal ties of marriage between the parties subsisting in name only. At least the condition indicated in Section 13-B for grant of a decree of dissolution of marriage by the mutual consent is present in the instant case. It is only on account of the statutory cooling period of six months that the parties have to wait for a decree of dissolution of marriage to be passed 13. In the above circumstances, in our view, this is one of those cases where we may invoke and exercise the powers vested in the Supreme Court under Article 142 of the Constitution. The marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired. When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months.”

12. Learned counsel further refers to a decision dated 17^th November, 2014 of the Supreme Court in Civil Appeal No. 10561 of 2014 (Arising out of SLP(C) No. 13941 of 2013) Prachi Singh Patil Vs. Shri Rahul G. Patil, wherein with reference to facts that for last more than six years efforts made for settlement had failed and ultimately the parties decided to reside separately by virtue of consent terms arrived at between them on 26th September, 2014. In the circumstances, the Supreme Court in exercise of power under Article 142 of the Constitution of India, declared the marriage to have been dissolved.

13. Thus, it is clear that, the Supreme Court had exercised the powers under Article 142 of the Constitution of India, when it had been not possible for the parties to live together.

14. Learned counsel for petitioners relying on aforesaid judgments urges to this court to pass order of waiver of expiry of statutory period of six months after institution of the proceedings for divorce by mutual consent pursuant to section 13-B(2) of the Hindu Marriage Act, 1955.

15. However, I am required to take into account a decision by a learned single judge of this court in writ petition No. 9131 of 2011 (Rachna Shailendrakumar Kasliwal Vs. The State of Maharashtra and another) decided on 15-12-2011, wherein learned single judge declined the request of petitioners. It was urged before learned single judge that there is no embargo on the exercise of powers of court from considering the waiver of the period, and as such, there is no impediment. In that case, the parties were litigating

for a year before the family court and during pendency of the proceedings parties had arrived at a consensus and filed the proceedings under section 13-B and considering all the aspects, it was urged that application for waiver of six months ought to have been allowed and a decree of divorce ought to have been passed.  However, learned single judge considered that said issue is no longer res-interga referring to two decisions, one by the Supreme Court of India reported in 2009 (10) SCC 415 and another by a division bench of this high court reported in AIR 2009 Bombay 12 and considered that court has no jurisdiction to waive period of six months as required under section 13-B (2) of the Hindu Marriage Act, 1955. It was further considered that application for waiver does not spell out any undue hardship.

16. In present case, it appears that parties have been residing separately immediately after solemnization of their marriage i.e. after about a period of four days. The marriage had taken place in April-2012 and was dissolved by customary divorce in December-2014. The proceedings for divorce under Hindu Marriage Act, 1955 have been lodged in February-2015 and application Exhibit-10 for waiver of period has been moved in April-2015.

17. In the decisions which are sought to be relied on by the learned counsel for the petitioners, the facts are quite different from the facts in the present case. In one of the cases, the divorce proceedings were filed way back in 2006 and subsequently the parties decided to have divorce by mutual consent, as the proceedings which were already pending, the court decided to give proper treatment to period consumed by the same and decided granting of waiver after the parties went for divorce by mutual consent. In other case of the division bench, factual situation was different and customary divorce had been obtained and that bonafide belief led the parties to contract second marriage. In that case the court deemed it appropriate to invoke inherent powers.

18. So far as the case of Supreme Court is concerned, the Supreme Court invoked article 142 of the Constitution of India and allowed the application for divorce by mutual consent by waiving the statutory period.

19. It would be useful to consider observations by the Supreme Court in paragraphs No. 27 to 31 in the case of Anil Kumar Jain Vs. Maya Jain reported in (2009)10 Supreme Court Cases 415, which read thus: “27. In all the subsequent cases, the Supreme Court invoked its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage ties had completely broken and there was no possibility whatsoever of the spouses coming together again. In such a situation, this Court felt that it would be travesty of justice to continue with the marriage ties. It may, however, be indicated that in some of the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the constitution, this question had arisen and it was held in most of the cases that despite the fact that the marriage had broken down irretrievably, the same was not a ground for granting a decree of divorce either under Section 13 or Section 13-B of  the Hindu Marriage Act, 1955. In the ultimate analysis the aforesaid discussion throws up to propositions. The first proposition is that although irretrievable breakdown of marriage is not one of the grounds indicated whether under Sections 13 or 13-B of the Hindu Marriage Act, 1955 for grant of divorce, the said doctrine can be applied to proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme court can grant relief to the parties without even waiting for the statutory period of six moths stipulated in Section 13-B of the aforesaid Act. This doctrine of irretrievable breakdown of marriage is not available even to the High Court’s which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on the grounds not provided for in Sections 13 and 13-B of the Hindu Marriage Act, 1955. The Second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other courts can exercise such powers. The other courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which in exercise of its extraordinary powers under Article 142 of the Constitution can pass orders to do complete justice to the parties. The various decisions referred to above merely indicate that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given fact situation by invoking its powers under Article 142 of the Constitution, but in normal circumstances the provisions of the statute have to be given effect to. The law is explained in Sureshta Devi Case still holds good, though with certain variations as far as the Supreme Court is concerned and that too in the light of Article 142 of the Constitution.”

20. Observations of the division bench of this court in the case of Principal Judge, Family Court Nagpur Vs. Nil reported in AIR 2009 Bombay, 12 are, “The period specified by Legislature as prerequisite to filing and grant of a decree for divorce on mutual consent is expected to be complied with and its observance is not discretionary at the whim of the Court. The legislature scheme clearly shows that the specified periods are not optional for the parties to be complied with because the cause of action is completed only upon conclusion of the period and clearly mandates the Court to satisfy the requirements of law before passing a decree. The provisions of Section 13B(2) of the Act provide that parties should be given six months period to ponder and reconsider their decision which is obviously after filing of the first motion in terms of Section 13B(1) of the Act. This is a kind of benefit founded on social outlook and undisputed legislative intent. The parties are expected to consider whether their mutually taken decision to file a petition under Section 13B(1) was correct one and it should be affirmed by filing a second motion and praying for a decree of divorce on mutual consent or they should withdraw the first motion or render it ineffective and live together if their marriage can be saved. The mutual consent ought to continue from the date of institution of first motion till passing of the decree. This is the significance of the provisions of Section 13B(2) of the Act. It will not only be unjust but would be impermissible on accepted norms of statutory interpretation that this period of six months is treated as optional, condonable or could be waived at the request of the parties. The law must be given a meaning that would be applicable and acceptable generally and not to a particular case. Firstly, the legislature has not provided any power of relaxation to the Court in regard to the stated period of six months under section 13-B(2). Secondly, if this procedure is adopted at the behest of the parties by the Court, it will amount to denial of a statutory benefit of rethinking. The period of six months is the product of the legislature and the Courts have always upheld its validity. To waive or abolish by judicial dictum a specific provision of the legislature would amount to negating a statutory provision which is otherwise constitutional and cannot easily be dropped in reality. No prejudice is caused to the parties by merely waiting for a short period of six months before they take a vital and pertinent decision in regard to their marriage which is a social sacrament coupled with civil rights and obligations and which they had entered upon voluntarily and happily. Impulsive and impatient decisions rarely guide the parties to the logical and correct decision. They must have time to ponder over their decision and reassure themselves that the decision of dissolving their marriage is correct and needs to be implemented. For arriving at such a vital decision the period of six months is to be held as mandatory and in conformity with the legislative intent it expressed in no uncertain terms in the relevant provisions.”

21. As such, the decisions which have been rendered in the cases relied on by the learned counsel, would not be able to assist petitioners in the present case, particularly when, in majority of cases the litigation went on for more than the period as required by statute, and in very peculiar and unusual facts courts have in some cases waived the period. Decisions relied upon on behalf of the petitioners may not assist the petitioners for waiver statutory period.

22. The division bench of this court in the decision reported in AIR 2009 Bombay 12 has referred to rationale and reasons underlying the provisions of section 13-B of the Hindu Marriage Act, 1955 and the Supreme Court in the decision reported in (2009)10 Supreme Court Cases 415, has ruled that the Supreme Court can in exercise of extraordinary powers under Article 142 of the Constitution of India convert a proceeding under section 13 of Hindu Marriage Act, 1955 into one under section 13-B of Hindu Marriage Act, 1955 and pass decree of divorce by mutual consent without waiting for the statutory period of six months. The Supreme Court has also observed that neither civil courts nor even high courts can pass orders before the period prescribed under relevant provisions of the Act or on the grounds not provided for under sections 13 and 13-B of the Hindu Marriage Act, 1955.

23. In the present case, though the parties appear to have agreed for divorce, and contend to have arranged for their respective second marriages, no particulars have been given and though it is being urged that passage of six months would cause undue hardship to the petitioners, those have not been spelt out in the application. In such a case, the order impugned can hardly be faulted with.

24. Taking into account aforesaid and in the circumstances, I do not deem it appropriate to accede to earnest request being made by the petitioners under present writ petition.

25. Writ Petition, as such, stands dismissed. Rule stands discharged.

Sd/-

 ( SUNIL P. DESHMUKH, J. )

Wife guilty of contempt of court. Maintenance denied with cost.

Delhi High Court
Bench: JUSTICE Shiv Narayan Dhingra

Gurbinder Singh vs Manjit Kaur 

on 25 January, 2010

JUDGEMENT

1. The petitioner has preferred this contempt petition against respondent alleging violation of an undertaking given to the Court of Additional District Judge, Jallandhar on 8th September 2000.

2. The petitioner and respondent are husband and wife. The petitioner was in the Army and the wife was working as a teacher in S.D. Model School, Jalandhar Cantt. The divorce and various other proceedings were going on between the parties. The parties with the intervention of their counsels entered into a settlement and this settlement was recorded by the Court. In that settlement, the respondent (wife) agreed that she will not initiate any type of action against petitioner or against children of the parties or against the parents of the petitioner and other relatives of the petitioner (the children were at that time living with the petitioner) before the Court of law or before any other authority and she would not do anything which would affect the character, status or reputation of the petitioner. The petitioner also gave a similar undertaking that he would not disturb respondent in any manner and he Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 1 Of 3 would not institute any action against her either before the Court of law or before any authority and he will not try to castigate honor or character or reputation in any manner. Thereafter, before this Court in April’05, she (respondent) again filed an affidavit that she would abide by the undertaking given to the learned ADJ on 8th September 2000 and she would not harass or humiliate the petitioner in future and will not create any cause of action afresh. This undertaking was given by way of an affidavit. Thereafter,the respondent herein filed an application under Section 125 Cr.P.C. before the Jallandhar Court in August’ 04 claiming maintenance from the petitioner on the ground that the petitioner had neglected to maintain her and she had no source of income. There is no doubt that the respondent had a right to claim maintenance from the petitioner, if she was not able to maintain herself. A perusal of the ex party order obtained by her from the Court of Jallandhar shows that she concealed all material facts from the Court at Jallandhar. She did not disclose that she was working as a teacher in a school at Jallandhar and that there was an agreement between the parties arrived before learned ADJ, Delhi and that she had also filed an affidavit in the High Court that she would not unnecessarily harass the husband. Where a person after concealing the material facts about her own employment and about the undertaking given to the Court, files an application for maintenance just to harass the opposite side, after giving an undertaking to the Court that she would not harass the petitioner (husband), I consider this amounts to violation of undertaking given by her. The respondent appeared in person today in the Court and admitted that at the time she filed the petition in the Jallandhar Court, she was gainfully employed as a teacher and she continued to remain in employment till 2008 i.e. even after passing of the order under Section 125 of Cr.P.C. A perusal of the ex party order passed by learned JM would show that the respondent had concealed from the JM about her own employment, her salary from the school and her assets and contended that the respondent was drawing a pension of Rs.10,000/- per month and his income from other sources was Rs.20,000/- per month and she obtained an order of grant of maintenance @ Rs.3,000/- per month from the date of application. She did not disclose to this Court when she filed her affidavit in this Court in April, 2005 that Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 2 Of 3 she had filed a petition at Jallandhar Court which was going on ex party or that she had already preferred a petition under Section 125 of Cr.P.C which was pending.

3. I consider that the conduct of the wife (respondent herein) of not disclosing to this Court about a petition being pursued by her and her conduct of concealing the material information from the Court of Judicial Magistrate, Jallandhar obtaining an ex party order was contemptuous and violation of an undertaking given by her.

4. I, therefore, hold the respondent guilty of contempt and a fine of Rs.10,000/- is imposed on her. However, after her retirement, if she seeks maintenance for herself after disclosing to the Court concerned about her pension and other income and properties, which she holds in Delhi and other places, she would be free to make a petition regarding maintenance before the Court of competent jurisdiction.

5. With above order, the petition stands disposed of.

Making Of Fake Document Is Different Than Causing It To Be Made; Only Maker Can Be Charged With Forgery: SC

It is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery, the bench said.

Observing that making of a false document is different than causing it to be made, the Supreme Court, in Sheila Sebastian Vs. R. Jawaharaj, has held that a charge of forgery cannot be imposed on a person who is not the maker of the same.

The complainant, in this case, had alleged that accused no. 1, with the aid of an imposter who by impersonating as Mrs. Doris Victor, created a power of attorney document in his name as if he was her agent. Though the trial court and first appellate court convicted the accused, the high court acquitted them holding that to get attracted the offence of forgery, “making of a false document” is essential.

Assailing this high court judgment before the apex court, it was contended that anyone who makes a false document is guilty of forgery and in this case the accused created the forged power of attorney with the sole intention of grabbing the property belonging to one Mrs. Doris Victor.

Referring to Sections 463-465 of Indian Penal Code, a bench of Justice NV Ramana and Justice S. Abdul Nazeer observed that unless and until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.

The bench, further elaborating the scope of these provisions, said: “The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that “to make”, in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.”

The court also referred to various case laws and observed that a charge of forgery cannot be imposed on a person who is not the maker of the same and that making of a document is different than causing it to be made. “It is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. The definition of “false document” is a part of the definition of “forgery”. Both must be read together. ‘Forgery’ and ‘Fraud’ are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts,” the bench said.

The court also said there is no finding recorded by the trial court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that ‘false document’.

If this is the coordination between the prosecution and the investigating agency, every criminal case tend to end up in acquittal

The bench further observed that it is the imposter who can be said to have made the false document by committing forgery in this case. “This case on hand is a classic example of poor prosecution and shabby investigation which resulted in the acquittal of the accused. The Investigating Officer is expected to be diligent while discharging his duties. He has to be fair, transparent and his only endeavour should be to find out the truth. The Investigating Officer has not even taken bare minimum care to find out the whereabouts of the imposter who executed the PoA. The evidence on record clearly reveals that PoA was not executed by the complainant and the beneficiary is the accused, still the accused could not be convicted. The latches in the lopsided investigation goes to the root of the matter and fatal to the case of prosecution. If this is the coordination between the prosecution and the investigating agency, every criminal case tend to end up in acquittal. In the process, the common man will lose confidence on the criminal justice delivery system, which is not a good symptom. It is the duty of the investigation, prosecution as well as the Courts to ensure that full and material facts and evidence are brought on record, so that there is no scope for miscarriage of justice,” the bench added.

The court added that although it acknowledges the complainant’s plight who has suffered due to alleged acts of forgery, but it cannot convict the accused because penal statute cannot be expanded by using implications.

Husband has the right to cross examine Wife.

DELHI HIGH COURTBench: JUSTICE Veena Birbal

KAILASH JUNEJA 

Vs. PREETI JUNEJA

On 25 April 2012

JUDGEMENT

The petitioner/husband has filed a divorce petition against the respondent/wife which is listed for final arguments before the learned Trial Court. A challenge has been made to the order dated 18.12.2010 by which opportunity of cross-examination of RW-1 i.e. the respondent/wife has been closed.2. The Counsel for appellant submits that the respondent had filed her affidavit only on 16.12.2010. On the said date, the petitioner had given maintenance of Rs. 30,000 to the respondent and due to non-availability of Counsel for petitioner/husband, the case was adjourned for 18.12.2010 subject to costs of Rs. 1000.3. Even on 18.12.2010, the Counsel for petitioner could not appear and the learned Trial Court has closed the opportunity of cross-examination of RW-1. It is stated that on the said date RE was closed and the matter was listed for final arguments.4. The learned Counsel submits that till date arguments have not been heard and the matter is listed before Trial Court on 28.4.2012. It is further submitted that the right of cross-examination is an important right and if the same is not given great prejudice will be caused to the petitioner inasmuch as evidence of respondent/wife will go unattributed. It is further submitted that the same will also have serious consequences on the petitioner/husband as petitioner/husband would not be in a position to demolish the stand of respondent.5. The respondent has all through appeared in person. She has opposed the present petition and has contended that keeping in view the facts and circumstances of the case, the petitioner is not entitled for any opportunity to cross-examine the respondent.6. I have considered the submissions made and perused the material on record 7. It may be noticed that the case was listed for the first time for evidence of respondent on 16.12.2010. On the said date, respondent/wife has filed her evidence by way of affidavit. The case was then adjourned to 18.12.2010. On the said date Counsel for petitioner/husband was not present. The impugned order has serious consequences on the petitioner/husband as the evidence of respondent will go un rebutted as right to cross-examine has been closed which is a valuable right of petitioner/husband. The petitioner should not be allowed to suffer due to lapse on the part of Counsel.8. In the interest of justice, the impugned order dated 18.12.2010 by which right of the petitioner/husband to cross-examine the respondent has been closed, is set aside subject to costs of Rs. 5,000 to the respondent. The petitioner is given one opportunity to cross-examine the respondent/wife. The parties will appear on 28.4.2012 before the Trial Court and the petitioner shall pay the costs of Rs. 5,000 to the respondent and the Trial Court shall give a suitable date for cross-examination of RW-1. It is clarified that only one opportunity will be given to the petitioner for cross-examination and prior to that he will also clear all the arrears of maintenance pendent lite. The petition stands disposed of LCR be sent back forthwith. CM 5703/2011.In view of above, no further orders are required on this application.

The same stands disposed of accordingly.

The Delhi High Court recently granted divorce to a man holding that his estranged wife’s false allegation of illicit relation between him and his widowed sister-in-law amounted to cruelty.

 

The Delhi High Court recently granted divorce to a man holding that his estranged wife’s false allegation of illicit relation between him and his widowed sister-in-law amounted to cruelty. Justice J.R. Midha was hearing Appeals challenging a Trial C...

                              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                                           Date of Decision: 9^th  April, 2018

MAT.APP. 62/2011 & C.M. Nos. 16979/2011, 19900/2016, 28099/2016 and 5315/2017

                                                                                                                ..... Petitioner

Through:        Ms. Reena Jain Malhotra,

Advocate along with petitioner

present in person

versus                ..... Respondent

Through:        Ms. Vandana Sharma,

Advocate along with

respondent present in person

MAT.APP. 69/2011

                                                                                                                ..... Petitioner

Through:        Ms. Vandana Sharma,

Advocate along with petitioner

present in person

versus                ..... Respondent

Through:        Ms. Reena Jain Malhotra,

Advocate along with

respondent  present in person

CORAM:

HON'BLE MR. JUSTICE J.R. MIDHA

J U D G M E N T

1.                 „J‟ and „R‟ got married on 03^rd July, 1978 and two children were born out of their wedlock, namely a daughter, Pooja on 29^th

October, 1980 and a son, Raghav on 04^th  September, 1983. On 29^th

November, 2002, „J‟ instituted a petition for dissolution of marriage

on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 against „R‟ which resulted in the judgment dated 06^th June, 2011 whereby the learned Trial Court rejected the prayer for grant of decree of divorce but passed a decree for judicial separation under Section 13A of the Hindu Marriage Act. Both the parties have challenged the impugned judgment. The husband is seeking a decree of divorce on the ground of cruelty whereas the wife is seeking setting aside of the decree of judicial separation. For the sake of convenience, the husband and wife are referred to as “the petitioner” and “the respondent” respectively, as per their nomenclature before the Trial Court.

2.                 The petitioner sought the decree for divorce on the ground of cruelty against the respondent on various grounds, inter alia, that the respondent was extremely suspicious towards him and often accused him of flirting around followed by abuses and tantrums along with callous and irresponsible behaviour towards his mother till she died, and was also irresponsible and callous towards the brother and sister of the petitioner. Soon after the death of the petitioner‟s brother in

1999, the respondent‟s suspicious nature went beyond all reason and tolerance when the respondent started accusing the petitioner of having an affair with the widow of his brother, Anuradha Dang. The respondent made such accusations not only in front of their children but also in front of his relatives, neighbours, police, friends and servants which resulted in feeling of deep anguish, disappointment and frustration in the petitioner. The continuous course of abuse and humiliating treatment was calculated to torture and render the life of the petitioner miserable, and the continuous unjustifiable conduct and behaviour of the respondent affected the physical and mental health of the petitioner, wherein the petitioner also suffered a massive heart attack in July, 2010. The petitioner was also accused of ignoring the welfare and education of his own children, while taking care of the children of his deceased brother on the premise that he was having an extra marital affair with the widow of his brother. The continued torture, both mental and physical of the petitioner at the hands of the respondent ultimately led to the end of their matrimonial relationship.

3.                 The respondent contested the petition on various grounds, inter alia, that the parties were happily married for more than 25 years and the petitioner started victimising the respondent after developing an extra-marital affair with the widow of his brother, Anuradha Dang. According to the respondent, the petitioner deserted the respondent after committing acts of cruelty and indulging in immoral acts. The respondent pleaded that she was informed by her friends that the petitioner was seen frequently at different restaurants, cinemas, clubs and shopping complexes with Anuradha Dang. She further pleaded that in 2000 the petitioner on multiple occasions, went to India to spend weekends with Anuradha Dang. The respondent pleaded that the petitioner was having immoral relationship with Anuradha Dang and in summer of 1995, the petitioner left the respondent in UK to continue his illicit affair Anuradha Dang. The respondent came to India on the death of her mother-in-law and found that her place has been usurped by Anuradha Dang, who was acting as petitioner‟s wife.

The  respondent  pleaded  that  the  petitioner  in  front  of  his  various

friends, told the respondent that as per the custom in Lucknow, the younger brother takes over his widowed sister-in-law and on another occasion, Anuradha Dang told the respondent that we should live together and share the petitioner as a husband and father of our children. During the petitioner‟s posting at Asian Development Bank, Philippines, the petitioner made extended official trips to Delhi to continue his adulterous relationship with Anuradha Dang and together they watched pornographic videos and spent time on weekends as informed by the well-wishers and friends of respondent who encountered petitioner and Anuradha Dang. The respondent further pleaded that the relationship between the petitioner and Anuradha Dang adversely affected their children who questioned the respondent about the relationship. The respondent denied the allegations of cruelty made by the petitioner and pleaded that the petitioner was cruel to the respondent.

4.                 The learned Trial Court framed the following issues:

“1.Whether the respondent has, after solemnization of marriage treated the petitioner with cruelty? OPP

  2.Whether the petitioner has not come to the court with clean hands or has taken advantage of his own wrongs as stated in the WS? OPR

  3.Whether the petitioner is entitled to relief claimed? OPP

 4.  Relief.”

5.                 The petitioner examined himself as PW-1 and his friend, Uday Chatterjee as PW-2 whereas the respondent examined herself as RW-1, her son Raghav Dang as RW-2, Sunil Singhal as RW-3 and Praveena Singhal as RW-4.

Findings of the Trial Court

6.                 Learned Trial Court decided issue no.1 in favour of the petitioner. The conclusion on the findings of the Trial Court with respect to issue no.1 are as under: -

“In view of the above evidence available on record, it cannot be said that the petitioner was having any kind of illicit relationship with his sister in law. Rather from the material available on record, it appears that consequent upon departure of his brother from this world in the year 1999, the petitioner, as a good brother-in-law and having soft corner for the family of his brother, rendered some help to Ms. Anuradha Dang and her children, but from all this, it cannot be said that he was having illicit relations with his sister in law.

Herein, it cannot be said that the allegation of extra marital relations of the petitioner with his sister in law Ms. Anuradha Dang, even since the departure of her husband, have been made in a fit of anger or under an emotional stress. These have been made in a formal pleading filed in the Court.

Here also, questions to the effect that petitioner has extra marital relations with his sister-in-law ever since the departure of her husband, were put in the cross-examination of the petitioner. These are not the mere protestations of an injured wife. These assertions cannot but constitute mental cruelty.

From the above discussion, the established facts and applying the settled law referred to above, this Court holds that the petitioner has succeeded in establishing his case that the respondent subjected him to cruelty by levelling false allegation that he has illicit relations with his widowed sister-in-law, for whose family he has actually soft corner and desire to help after departure of his brother from this world.

This issue is, therefore, decided in favour of the petitioner and against the respondent.”

(Emphasis supplied)

7.                 Learned Trial Court decided issue no.2 in favour of the petitioner. The conclusion of the findings of the Trial Court with

respect to issue no.2 are as under: -

“In view of the above discussion, this Court finds that it is not a case where petitioner can be said to have condoned the acts of cruelty of the respondent or to have cohabited with the respondent even after filing of the petition or that he is taking advantage of any own wrong.

Therefore, issue No.2 is decided against the respondent and in favour of the petitioner.”

8.                 With respect to issue no.3 and 4, the learned Trial Court declined the decree of divorce to the petitioner on the ground that there was a possibility of the parties living together as husband and wife and they had a son of marriageable age who loved them and had regard for both of them. The conclusion of the findings of the Trial Court with respect to issue no.3 and 4 are reproduced hereunder:

“11. Petitioner has sued his wife-respondent to have decree of divorce. As held above, petitioner has proved his case that he has been subjected to cruelty by the respondent.

Section 13A of Hindu Marriage Act provides that in any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and

(vii)      of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Findings recorded under issues No.1 and 2 entitle the petitioner to decree of divorce, but in the given facts and circumstances of this case, Court finds it just and proper to pass a decree for judicial separation instead of a decree of divorce. Following are the facts and circumstances which have led the Court to arrive at this conclusion: -

(a)             that at the time of marriage of their daughter, the couple agreed not to let the world know that they had differences on account of cruelty;

(b)             that the parties, who, got married in the year 1978 have a son of marriageable age who loves them and has regard for both of them,

(c)              that there is possibility of the couple living together as husband and wife;

In view of the above findings, this petition is dismissed so far as prayer for grant of decree of divorce is concerned, but a decree of judicial separation is passed in favour of the petitioner and against the respondent as an alternative relief available U/s 13 of Hindu Marriage Act.”

Petitioner’s Contentions

9.                 The petitioner has been able to prove his case of cruelty as ground for dissolution of the marriage and is entitled to decree of divorce. Reliance is placed on Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v. Aneel Kaur, 2005(2) SCC 22.

10.            The conduct complained by the petitioner against the respondent was extremely severe in nature, weighty and certainly no reasonable person would be expected to endure it, the factum of which has also been observed by the Trial Court in the impugned judgment, in spite of which the petitioner has been saddled with the order of a judicial separation instead of decree of a divorce which would have restored a semblance of dignity to the battered self-respect of the petitioner in front of all people associated with him who were a witness to his trauma for more than ten years.

11.            The accusations levelled by the respondent against the petitioner, resulted in a lot of mental pain and anguish in the mind of the petitioner. It is a settled law that physical violence is not a

necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than physical violence.The Trial Court has committed a manifest error and perversity of thought in misinterpreting the preponderance of probabilities as given in its order granting the relief of judicial separation instead of divorce which was prayed for. The unwarranted acts of mental cruelty as elaborately stated in the petition for divorce, rejoinder, evidence and the impugned judgment have devastated the petitioner. Reliance was placed on Kiran Mandal v. Mohinio Mandal I(1994) DMC 256.

12.            The respondent/wife was entertaining suspicion that the petitioner/husband had illicit relations with Anuradha Dang. The substantive evidence of PW-1, PW-2, RW-2, RW-3 and RW-4 establishes the factual position that PW-1 was maintaining relations with Anuradha Dang only to demonstrate his care and concern for the

well being and welfare for his deceased brother‟s family. Moreover, such illicit relations were categorically denied by PW-2, friend of the petitioner, RW-2 and RW-3 relations of the respondent and RW-4 son of the petitioner and the respondent. In fact, during cross-examination of the witnesses, blatant suggestion was given to the petitoner that the he had illicit relations with the widow of his deceased brother. There was no basis for imputing such reckless allegations against her own husband by the respondent. Reliance was placed on Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511,Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558, Vinitha Saxena v. Pankaj Pandit(2006) 3 SCC 778 and Hoovamma v. Vishwanth ILR 2009 Kar 4193.

13.            Out of 25 years of marriage, the parties have lived separately for 11 years, most of which has been spent in acrimonious allegations against each other in the litigation embarked upon by both the parties.

There is no possibility of retrieval of the marriage and decree of divorce be granted to end the agony of both the parties.

14.            The marriage between the petitioner and the respondent is dead emotionally and practically and there is no chance of its being retrieved, the continuance of such a marriage would amount to cruelty. Reliance was placed on Romesh Chander v. Savitri (1995) 2 SCC 7 and Satish Sitole v. Ganga passed in Civil Appeal No.7567/2004 on

10 ^th July, 2008.

15.            The petitioner suffered a massive heart attack in July, 2010 even then the respondent was not deterred in refraining from filing and pursuing frivolous cases against the petitioner nor did she bother to enquire about his health. Now the parties have no feelings and emotions towards each other. The entire substratum of the marriage has already disappeared.

Respondent’s contentions

16.            The petitioner tortured and cheated the respondent. The petitioner used to maltreat the respondent in front of his common friends and relatives. The petitioner called the respondent insane before the whole gathering and humiliated her. The said incident was also corroborated by the two witnesses namely Sunil Singhal and his wife Praveena Singhal. Both the witnesses confirmed the said incident.

17.            The petitioner himself withdrew from the company and society of the respondent, he himself deserted the respondent. The petitioner cannot be allowed to take the undue advantage of his own misdeeds and acts of cruelty by seeking the decree of divorce against the respondent, who in fact is the aggrieved and victim of the said misdeeds of the petitioner.

18.            The respondent in her cross-examination proved many times that she saw Anuradha Dang in her master bedroom with her husband in August, 1999. Even the son of the respondent confirmed in his affidavit that his father was rude to his mother/respondent.

19.            The learned Trial Court ignored the admission of the petitioner that he made Anuradha Dang as his beneficiary in the UK Citibank Pension Plan and also a beneficiary in his shares of Reliance. The petitioner also admitted that he made Anuradha Dang and her children as his dependents in his Kris Flyer Programme in USA. The petitioner made Anuradha Dang and her children as his dependents along with the respondent. The learned Trial Court failed to appreciate the fact that even in the very private affairs of the family, the petitioner was including the name of Anuradha Dang without the knowledge of the respondent.

20.            The parties were living together and were cohabitating till 2007 that is even after filing of the divorce petition in 2002. The respondent has filed around 99 photographs to show that the parties are living happily and are even cohabitating, spending holidays, going for dinners, celebrating important functions together. The petitioner admitted all the photographs during his cross-examination and tried to give false justification.

21.            The respondent is the legally wedded wife of the petitioner and she deserves equal rights in the decisions taken by the petitioner for the welfare of the family. The petitioner failed to prove his case that respondent was cruel to the petitioner. The respondent is the victim of mental torture and cruelty at the hands of the petitioner. It further shows that the respondent always wanted to live with her husband in all the circumstances.

22.            The learned Trial Court was also at fault in stopping the interim maintenance of the respondent and by not ordering for the permanent alimony as per the section 25 of the Hindu Marriage Act. It is a settled law that the permanent alimony and maintenance can be granted on basis of oral application also. The respondent was entitled to monthly maintenance from the date of application till final order including future maintenance and litigation expenses. Reliance is placed on

Umarani v. D. Vivekanandan, II (2000) DMC (Mad). The petitioner is a man of means and has many properties at Saraswati Kunj, Delhi, Anand Lok, Delhi, Navjeevan Vihar, Delhi, Qutub View Apartment, Delhi, two flats at London and much more. He has got shares and deposits worth crores of Rupees in India and Abroad. He is getting regular income in dollars and pounds but despite of all this, the learned Trial Court deprived the respondent from her equal legal rights over the income and assets of the petitioner.

Findings

23.            The object of a trial is first to ascertain the truth and then do justice on the basis of truth. It is the fundamental duty of the Court to ascertain the truth. The Indian Evidence Act, 1872 does not define truth. In Ved Parkash Kharbanda v. Vimal Bindal, 2013 (198) DLT 555, this Court discussed the meaning of truth and principles relating to the discovery of truth and Sections 3 and 114 of the Indian Evidence Act, 1872 have been summarized as under:

“21.        Summary of Principles

21.1 Truth should be the Guiding Star in the Entire Judicial Process

·        Truth is foundation of Justice. Dispensation of justice, based on truth, is an essential and inevitable feature in the justice delivery system. Justice is truth in action.

·        It is the duty of the Judge to discover truth to do complete justice. The entire judicial system has been created only to discern and find out the real truth.

·        The justice based on truth would establish peace in the society. For the common man truth and justice are synonymous. So when truth fails, justice fails. People would have faith in Courts when truth alone triumphs.

·        Every trial is voyage of discovery in which truth is the quest. Truth should be reigning objective of every trial. Judge has to play an active role to discover the truth and he should explore all avenues open to him in order to discover the truth.

·        The Trial Judge is the key-man in the judicial system and he is in a unique position to strongly impact the quality of a trial to affect system‟s capacity to produce and assimilate truth. The Trial Judge should explore all avenues open to him in order to discover the truth. Trial Judge has the advantage of looking at the demeanour of the witnesses. In spite of the right of appeal, there are many cases in which appeals are not filed. It is mostly with the Trial Judge rather than with the appellate Judge that the members of the general public come in contact, whether as parties or as witnesses.

21.2 What is „Truth‟ and how to discover it

·        Law‟s Truth is synonymous with facts established in accordance with the procedure prescribed by law.

·        The purpose of judicial inquiry is to establish the existence of facts in accordance with law.

·        Facts are proved through lawfully prescribed methods and standards.

·        The belief of Courts about existence of facts must be based on reason, rationality and justification, strictly on the basis of relevant and admissible evidence, judicial notice or

legally permitted presumptions. It must be based on a prescribed methodology of proof. It must be objective and verifiable.

21.3    Section 3 of Indian Evidence Act, 1872

·        “Evidence” of a fact and “proof” of a fact are not synonymous terms. “Proof” in the strict sense means the effect of evidence.

·        A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

·        The term “after considering the matters before it” in Section

3 of the Evidence Act means that for judging whether a fact is or not proved, the Court is entitled to take into consideration all matters before it which shall include the statement of the witnesses, admissions of the parties, confession of the accused, documents proved in evidence, judicial notice, demeanour of witnesses, local inspections and presumptions.

·        The term “believes it to exist” in the definition of “proof” is a “judicial belief” of the Judge based on logical/rational thinking and the power of reason, and the Court is required to give reasons for the belief. The reasons are live links between the mind of the decision maker and the belief formed. Reasons convey judicial idea in words and

sentences. Reasons are rational explanation of the conclusion. Reason is the very life of law. It is the heart beat of every belief and without it, law becomes lifeless. Reasons also ensure transparency and fairness in the decision making process. The reasons substitute subjectivity by objectivity. Recording of reasons also play as a vital restraint on possible arbitrary use of the judicial power. The recording of reasons serve the following four purposes:-

-   To clarify the thought process.

-         To explain the decision to the parties.

-         To communicate the reasons to the public.

-         To provide the reasons for an appellate Court to consider.

·        Non-recording of reasons would cause prejudice to the litigant who would be unable to know the ground which weighed with the Court and also cause impediment in his taking adequate grounds before the appellate Court in the event of challenge.

·        Nothing can be said to be “proved”, however much material there may be available, until the Court believes the fact to exist or considers its existence so probable that a prudent man will act under the supposition that it exists. For example, ten witnesses may say that they saw the sun rising from the West and all the witnesses may withstand the cross-examination, the Court would not believe it to be true being against the law of nature and, therefore, the fact is

„disproved‟. In mathematical terms, the entire evidence is multiplied with zero and, therefore, it is not required to be put on judicial scales. Where the Court believes the case of both the parties, their respective case is to be put on judicial scales to apply the test of preponderance.

·        The approach of the Trial Court has to be as under:-

·        If on consideration of all the matters before it, the Court believes a fact to exist or considers its existence probable, the fact is said to be „proved‟. On the other hand, if the

Court does not believe a fact either to exist or probable, such fact is said to be „disproved‟. A fact is said to be „not proved‟ if it is neither proved nor disproved.

·        The test whether a fact is proved is such degree of probability as would satisfy the mind of a reasonable man as to its existence. The standard of certainty required is of a prudent man. The Judge like a prudent man has to use its own judgment and experience and is not bound by any rule except his own judicial discretion, human experience, and judicial sense.

21.4    Section 114 of the Indian Evidence Act, 1872

·        Section 114 is a useful device to aid the Court in its quest for truth by using common sense as a judicial tool. Section 114 recognizes the general power of the Court to raise inferences as to the existence or non-existence of unknown facts on proof or admission of other facts.

·        Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts.

·        The source of presumptions is the common course of natural events, human conduct and public or private business, and the Section proceeds on the assumption that just as in nature there prevails a fixed order of things, so the volitional acts of men placed in similar circumstances exhibits, on the whole, a distinct uniformity which is traceable to the impulses of human nature, customs and habits of society.

·        The illustrations though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the section itself.

·        Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.

·        Presumptions of fact can be used by the Courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it. The function of a presumption is to fill a gap in evidence.

·        Section 114 of the Indian Evidence Act applies to both civil and criminal proceedings.

·            Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex and room must be left for play in the joints. It is not possible to formulate a series of exact propositions and con-flue human behaviour within straitjackets.

·        No rule of evidence can guide the Judge on the fundamental question whether evidence as to a relevant fact should be believed or not. Secondly, assuming that the Judge believes very few cases, guide him on the question what inference he should draw from it as to assist a Judge in the very smallest degree in determining the master question of the whole subject – whether and how far he ought to believe what the witnesses say? The rules of evidence do not guide what inference the Judge ought to draw from the facts in which, after considering the statements made to him, he believes. In every judicial proceeding whatever these two questions – Is this true, and, if it is true what then? - ought to be constantly present in the mind of the Judge, and the rules of evidence do not throw the smallest portion of light upon them.”

24.            Applying the aforesaid principles of law to the facts of the present case and on careful consideration of the matters before the Court, this Court is of the view that the allegations of illicit relationship levelled by the respondent/wife against her husband are not true.

25.            This Court agrees with the finding of the learned Trial Court that the respondent/wife has failed to prove any illicit relationship between the petitioner/husband and his widowed sister-in-law, Anuradha Dang. The respondent has levelled false allegations of an illicit relationship between the petitioner and Anuradha Dang in the written statement which clearly amounts to cruelty. The Trial Court has analysed the evidence of the parties in detail in paras 8 and 9 of the impugned judgment ( at 11 to 38 of the impugned judgement) which are not repeated herein for the sake of brevity and this Court agrees with the said analysis and the reasoned findings of the Ld. Trial Court.

26.            In Swati v. Arvind Mudgal, 218 (2015) DLT 729, this Court has held that false, scandalous and malicious allegations made in the written statement amount to cruelty. Relevant portion of the said judgement is reproduced herein under:

“False, scandalous and malicious allegations made in the written statement amount to cruelty

29.1. In V. Bhagat v. D. Bhagat (1994) 1 SCC 337 the wife, in her written statement, alleged that the respondent was suffering from mental hallucination, that he was a morbid mind and needed expert psychiatric treatment and that he was suffering from paranoid disorder. The wife‟s counsel in her cross-examination suggested several questions to the husband that several members of his family, including her grandfather, were lunatics. The Supreme Court held the pleadings of the wife and the questions in cross-examination are bound to cause immense mental pain and anguish to the husband.

29.2. In Vijay Kumar Ramchandra Bhate v. Neelam Vijaykumar Bhate, (2003) 6 SCC 334, the husband made disgusting accusations of unchasty and indecent accusations against the wife with a neighbor in the written statement. The Supreme Court held that the allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband.

29.3. In Navin Kohli v. Neelu Kohli, (2006) 4 SCC 558, the wife got an advertisement issued in the newspaper that her husband was her employee. She got another news item published cautioning his business associates to avoid dealing with him. The Supreme Court treated all this as mental cruelty to the husband.29.4. In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the wife made false and defamatory allegations against her husband and his mother to the police. The wife also lodged a complaint with the Karnataka High Court where her husband was employed, seeking his removal from the job. The Family Court granted a decree of divorce, which was set aside by the High Court in appeal on the ground that the parties stayed together only for a day. The Supreme Court held that a spouse can cause mental cruelty by his/her conduct even while he or she is not staying under the roof. Staying together under the same roof was not a pre-condition for mental cruelty. Relevant portion of the said judgment is reproduced hereunder:

“16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh[(2007) 4 SCC 511] , we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.

xxx                                                        xxx                                                        xxx

29.  In our opinion, the High Court wrongly held that because the appellant husband and the respondent wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a precondition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse's life miserable. This is what has happened in this case.

xxx                xxx        xxx

It is also to be noted that the appellant husband and the

respondent wife are staying apart from 27-4-1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh [(2007) 4 SCC 511] , if we refuse to sever the tie, it may lead to mental cruelty.”

(Emphasis supplied)

29.5.  In Hemwati Tripathi v. Harish Narain Tripathi, (2011)

181  DLT  237,  the  husband  levelled   false,  scandalous  and

malicious allegations against the wife that she had relationship

with one sadhu and her stay out of the house during nights in

the written statement which was held to be cruelty and wife was

granted  decree  of  divorce  against  the  husband.      Relevant

portion of the said judgment is reproduced hereunder:

“16. In the facts of the present case also despite the fact that the physical beating given by the respondent on many occasions by itself constitutes cruelty, but the scandalous allegations leveled by the respondent attacking the moral character of the appellant or attributing her relationship with some Sadhu certainly amounts to worse form of cruelty in the absence of any corroboration to such allegations.That the ratio of Ashok Kumar v. Santosh Sharma (supra) and Savitri Balchandani (supra) wherein it was held that a decree of divorce on the ground of cruelty can be passed on the strength of false, baseless, scandalous and malicious allegations in the written statement by one party on the other is thus found applicable to the facts of the present case because in the case at hand the husband has not led any evidence in support of his allegations.

…serious and malicious allegations of the appellant having relationship with one Sadhu and her staying out of the house during nights also leveled by the respondent and as per the settled legal position, casting such aspersions on the character of the other spouse has the affect of causing deleterious affect on the mind of such spouse and the same is a worse form of cruelty. It has not been denied by the respondent that no evidence was led by him to prove that the appellant used to go out during night to stay with that Sadhu.”

(Emphasis supplied)

29.6.  In D.N. Sharma Sharma v. Usha Sharma AIR 2004 Delhi

198, the husband filed a petition for divorce against the wife

who levelled false allegations against the husband having extra

martial relations with a lady in the written statement which was

held to be cruelty sufficient to dissolve the marriage between

the parties.  Relevant portion of the judgment of this Court is as

under:

“2. In the written statement, the respondent besides denying the allegations of assault etc. upon the appellant also stated that the appellant wanted to get rid of the respondent in order to marry another lady Sushila Bist with whom the appellant was having affair for the last almost 20 years and for whom the appellant not only used to misbehave with the respondent but also forced her to leave the matrimonial home alongwith the daughter...

... It was also stated that the appellant was having an affair with Sushila Bist with whom he had even been going to hill stations secretly and was roaming with her openly. It was alleged that the appellant had even displayed his photographs with Sushila Bist in the drawing room and he had thrown to wind all norms of decency as he openly moved around and even used to bring her home in later years in the presence of grown up daughters. It was alleged that the appellant was so engrossed with Sushila Bist that he totally neglected his family and started harassing them. It was also alleged that the appellant wanted to live with his mistress Sushila Bist after obtaining divorce and wanted to legalise her illegal deeds of secret marriage with the said lady.

xxx                                                        xxx                                                        xxx

16.                                                         In view of the aforesaid, in my opinion, writing letters to the authorities making slanderous allegations against the appellant, repeating the same not only in her own statement but also suggesting them to the appellant during the course of his cross-examination lends credence to the fact that the wife was persisting them to humiliate and wounding the feelings of the husband which have made impossible for him to live in the matrimonial home with the wife. These allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial life causing profound and lasting disruption driving the husband to feel deeply hurt and reasonably apprehend that it was impossible for him to live with the respondent.”

(Emphasis supplied)

29.7.  In Jay Dayal v. Shakuntala Devi AIR 2004 Delhi 39, the

wife   sought   divorce   against   the   husband   who     levelled

allegations of unchastity and indecent familiarity of the wife

with different persons outside the wedlock and having extra

martial relations with other persons in the written statement

which  was   held   to   be   cruelty   which   caused    reasonable

apprehension in her mind that it is dangerous to live with the

husband.  Relevant portion of the said judgment is reproduced

hereunder:

“2. ... It was alleged that the appellant issued a legal notice dated 6.12.1996, levelling serious allegations of immorality on the petitioner and her having illicit relations with one Mr. Kishore Kumar and then filed a complaint dated 9.5.1997, with the Commissioner of Police levelling similar allegations...

xxx                                                       xxx                                                            xxx

9. ... It is thus clear that the appellant has levelled disgusting allegations of unchastity and indecent familiarity of the respondent with different persons outside wedlock and her having extra martial relations with other persons. These themselves, in my opinion, will amount to cruelty.

xxx                                                        xxx                                                             xxx

11.                                                                                        In view of the foregoing these allegations without anything else by themselves, in my opinion, amount to the appellant treating the respondent with cruelty causing reasonable apprehension in her mind that it is dangerous to live with the appellant. In my opinion, therefore, the Trial Court was fully justified in dissolving the marriage of the parties by a decree of divorce and no case had been made out to interfere with the same...”

(Emphasis supplied)

29.8.  In Ramesh Kumar v. Aakash Sharma, II (2008) DMC

315, the husband sought divorce against the wife who levelled

allegations in the written statement that the husband was having

illicit  sexual  relation  with  sister-in-law.   However,  the  wife

could not prove or substantiate these allegations and therefore,

it was held to be cruelty by the Himachal Pradesh High Court.

Relevant portion of the said judgment is reproduced hereunder:

“21. The evidence on record leaves no doubt in my mind that the appellant has been subjected to constant mental cruelty by the respondent more especially her allegations of sexual misbehaviour and mis-conduct against the appellant accusing him of having illicit sexual relations with his sister-in-law (Bhabhi), for consideration, who is treating him like a younger brother. The evidence, clearly points out to the fact that the respondent has treated the appellant with cruelty within the meaning of the Act. In terms of the pronouncement of the Hon'ble Supreme Court in Samar Ghosh's case, I am satisfied that not only has the marriage broken down irretrievably because of the acts on the part of the respondent, and it is not possible for the appellant to live in an atmosphere which is vitiated and surcharged by allegations of adultery etc. Indian Society is sensitive to the relationships of brother and sister and mother and son which are not only respected but venerated. There has been no cohabitation between the parties since 1982.”

(Emphasis supplied)”

27.                                                With respect to the respondent‟s contention that she was living together and was cohabiting with the petitioner till 2007 and even after filing of the divorce petition in 2002, learned Trial Court has rejected the same and the detailed reasons are recorded by the learned Trial Court in para 10 of the impugned judgment (at 38 to 57 of the impugned judgement). This Court agrees with the reasons and findings of the learned Trial Court which are not repeated herein for the sake of brevity.

28.            This Court agrees with the learned Trial Court that the respondent has treated the petitioner with cruelty and the petitioner has neither condoned the acts of cruelty nor cohabited with the respondent. The petitioner has not taken advantage of any wrong as alleged by the respondent. This Court is of the view that the petitioner is entitled to a decree of divorce on the ground of cruelty. This Court agrees with the well reasoned findings of the learned Trial Court except the conclusion recorded in para 11.

29.            The finding of the learned Trial Court recorded in para 11 of the impugned judgment declining the decree of divorce and instead awarding a decree of judicial separation to the petitioner/husband is hereby set aside. The marriage between the parties is dissolved by a decree of divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

30.            The MAT.APP. 62/2011 is dismissed and MAT.APP. 69/2011 is allowed. Pending applications are disposed of.

31.                                                The respondent is at liberty to file an application for permanent alimony and maintenance under Section 25 of the Hindu Marriage Act before the Trial Court. However, the respondent shall continue getting the rent of the house at Coleman Court, London and shall be entitled to exclusive possession, use and residence in HIG Flat No.49, Nav Jeevan Vihar, New Delhi in respect of which the petitioner has already given an undertaking in the written submissions to not disturb the said arrangement.

J.R. MIDHA

APRIL 09, 2018                                                                                                  (JUDGE)