FAO 67/2000 - false 498A case amounts to mental cruelty

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Oct 13, 2005, 4:55:56 AM10/13/05
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IN THE HIGH COURT OF DELHI AT NEW DELHI

FAO 67/2000

Smt. Pinki Jain ... Appellant. Through: Mr. Gopal Narain Aggarwal,
Advocate

Vs.

Sh. Sanjay Jain ... Respondent. Through:Mr.Narinder Kaushik, Advocate


DATE OF RESERVE: 12-01-2005 DATE OF ORDER: 31-01-2005 CORAM:

31.01.2005

HON'BLE MR.JUSTICE O.P.DWIVEDI


1.Whether Reporters of Local papers may be allowed to see the judgment
?

2.To be referred to the Reporter or not ? Yes

3.Whether the judgment should be reported in the Digest ?


O.P. DWIVEDI J.

This appeal is directed against the order dated 24.12.99 passed by the
learned Additional District Judge whereby respondent-husband's petition
under section 13 (1) (ia) of the Hindu Marriage Act, 1955 ( for short
the 'Act') seeking dissolution of marriage by a decree of divorce on
the ground of cruelty has been allowed.

Various instances of cruelty alleged by the respondent have been
detailed in para No. 4 (i) to (xxii) of the impugned judgment.

In the written statement appellant-wife controverted the allegations
made by the respondent husband and further alleged that petition has
been filed because the appellant did not satisfy the respondent's greed
for more and more dowry. In support of their respective versions, the
respondent husband examined himself as PW-1 and appellant wife examined
herself as RW-1. After coisidering the material on record, learned
Additional District Judge came to the conclusion that the appellant
wife had lodged a false complaint at Meerut on the basis of which a
case was registered in the Court of CJM, Meerut under section
147/149/498-A/33/504/506 IPC read with section 3 and 4 of Dowry
Prohibition Act regarding allegations of harassment for dowry. Police
arrested the respondent husband, his father and uncle. They remained in
jail for about ten days. Even their bail application was strogly
opposed by the appellant. Ultimately a mutual settlement was arrived at
between the parties under which the appellant agreed to receive Rs.
5,25,000/- towards full and final settlement for divorce by mutual
consent. She also received Kisan Vikas Patra valuing Rs. 3 lakh, Rs.
35,000/- in cash and the balance amount of Rs.1,90,000/- was to be paid
by way of two FDR's in the sum of Rs.95,000/- each in the name of son
and daughter who were being looked after by the appellant. Terms of the
settlement are contained in the agreement Ex. PW-1/A. The appellant and
her brother appeared as witness before the CJM but did not support the
prosecution case and were declared hostile.

Ultimately respondent husband and other co-accused persons were
acquitted by he CJM vide order dated 6.6.95 (certified copy PW-1/B).
After receiving Kisan Vikas Patra for Rs. 3 lakh and Rs. 35,000/- in
cash, the appellant resiled from the settlement and did not agree for
divorce by mutual consent. This according to the learned. Additional
District Judge is a clear instance of cruelty. As regards other
instances of cruelty enumerated in the petition, the learned Additional
District Judge appears to have been inclined to accept the husband's
version because the appellant wife did not examine her relations in
whose presence some of the incidents of cruelty allegedly took place.
As per allegations made in the petition corroborated by the statement
of the respondent-husband, the incident of December 1989 when the
parties had gone to Mahabirji, the appellant had insulted respondent in
presence of her brother Arun Kumar and brother in law Padam Chand Jain.
The incident dated February 1990 when the appellant allegedly insulted
and abused the respondent happened in presence of Padam hand Jain in
hotel Claridge. According to the husband, the brother and father of the
appellant were called on several occasions to advice the appellant to
behave properly but instead of advising the appellant they insisted
that husband should shift to Brut and settle down there to which
husband did not agree. It was further alleged that in July 1993 the
sister-in-law of the appellant came to reside with the parties for
about 10 to 12 days and in her presence also appellant's insulting
behavior continued. The appellant allegedly tried to commit suicide
during that period. From the impugned order it appears that, the
learned Additional District Judge was inclined to accept the statement
of the husband regarding these incidents because appellant wife did not
examine her relations in whose presence these incidents allegedly took
place.

Learned counsel for the appellant vehemently contended that the burden
of proof lay on the husband who has filed divorce petition to prove
alleged instances of cruelty and the failure of appellant to examine
her relations cannot be taken to be a factor against appellant nor
respondent's case gets strengthened just because appellant did not
examine her relations. Reference in this contention was made to:- Sm.
Bijoli Choudhury Vs. Sukomal Choudhury-AIR 1979 Calcutta 87; Moran Mar
Basselios Catholicos and another Vs. Most Rev. Mar Poulose Athanasius
and others- AIR 1954 S.C. 526; Sankar Kumar and another Vs. Mohanlal
Sharma- AIR 1998 Orissa 117; and M/s Roy and Co. and another Vs. Sm.
Nani Bala Dey and others; AIR 1970 Calcutta 50. Further contention of
learned counsel for the appellant is that many other instances of
cruelty allegedly took place in presence of some relations of the
husband but he too did not examine any of them e.g the incident at
Nainital allegedly occurred in presence of his friend Amar Jain. The
incident dated 30.6.89 when appellant allegedly insulted the respondent
for not brining a decent gift at the time of her B'day allegedly took
place in presence of relations of the respondent husband. But none of
them have been examined.

the four arbitrators, the people from the biradari namely Harish Chand
Jain, Mahipal Jain, Pawan Kumar Jain and Rajinder Kumar Jain have also
not been examined by the respondent husband. The incident dated
31.12.91 allegedly took place in presence of Mohini, Bhabhi of the
husband. The instance of January 1993, when the appellant allegedly
abused the father of the husband took place in the presence of the
father of the respondent but he has also not been examined. Learned
counsel for the appellant contended that when no adverse inference has
been drawn against the respondent husband for not examining his close
friends and near relations on various allegations of cruelty, the same
approach should have been adopted while assessing the effect of the
appellant's failure to examine her friends and relations. This argument
carries weight. No implicit faith can be reposed in the testimony of
the either party in such litigation when parties are inclined to make
wild allegations against each other. It is important to note that after
their marriage in January 1988, parties resided in the matrimonial home
i.e House No. 2159, Gali No.9, Kailash Nagar, New Delhi, up to August
1993. Their three children, born in 1989, 1991 and 1993 were all born
in this very house. The parties took separate rented accommodation only
in August 1993.Even cantankerous ladies are normally accepted in the
family fold if they bear a male child. In the present case male child
was born on 18.6.93 after the birth of two daughters. When the parties
continued to reside in matrimonial home for years together, cohabited
and produced three children from the wedlock the inference that the
alleged acts of cruelty which took place before 18.6.93 were condoned
can be safely drawn. It is obvious that something went seriously wrong
with the parties during their stay in the rented accommodation at
Yamuna Vihar in August-September 1993. As per the averments made in the
petition and the statement of the respondent husband the appellant
refused to cook meals for some friends whom he had invited for a party
on the occasion of his B'day on 15.8.93 and then on 13.9.93 the
appellant allegedly poured kerosene oil on her and raised hue and cry.
These averments have been denied by the appellant and there is no
independent evidence to corroborate solitary statement of the
respondent husband. But one single instance of cruelty which stands
admitted between the parties takes the wind out of appellant's sails.

Admittedly, appellant wife had lodged a complaint at Meerut on the
basis of which a case was registered in the Court of CJM, Meerut under
section 147/149/498-A/323/504/506 IPC read with section 3 and 4 of
Dowry Prohibition Act making false allegations of torture for dowry
against her husband, father-in-law and other relations of the husband.
It is also admitted between the parties that Police arrested the
respondent, his father and uncle. They remained in jail for about ten
days. It is further admitted that some settlement for divorce by mutual
content was arrived at between the parties vide PW-1/A under which the
appellant agreed to receive Rs. 5,25,000/- towards full and final
settlement for divorce by mutual consent. It is further admitted that
the appellant received Kisan Vikas Patra amounting to Rs. 3 lakh and
Rs. 35,000/- in cash and the balance amount of Rs.1,90,000/- was to be
paid at the time of filing joint petition for divorce by way of two
FDR's in the sum of Rs.95,000/- each in the name of son and daughter
who are living with the apellant. These subsequent events can very well
be taken into consideration as facts are admitted between the parties.
The statements of the appellant and his brother were recorded before
the CJM wherein it was admitted that the complaint was not based on
true facts.

The act of the appellant in filing a false complaint case and getting
her husband and other in-laws arrested clearly amounts to cruelty. The
statement of the appellant and her brother before CJM points towards
falsity of the complaint. Not only that she received Rs. 35,000/- and
kisan vikas patra for Rs.3 lakh long back in the year 1994. Yet she
resiled from the agreement and did not sign papers of divorce.

In the case of GVN Kameswara Rao Vs. G. Jabilli- (2002) 2 SCC 296,
Supreme Court taking note of its earlier decision in the case of (1994)
1 SCC 337, V. Bhagat Vs. D. Bhagat, observed that :-

'' Mental cruelty in Section 13(1)(i-a) can broadly be defined as
that conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with the
other. In other words, mental cruelty must be of such a nature that the
parties cannot reasonably be expected to live together. The situation
must be such that the wronged party cannot reasonably be asked to put
up with such conduct and continue to live with the other party. It is
not necessary to drove that the mental cruelty is such as to cause
injury to the health of the petitioner. While arriving at such
conclusion, regard must be had to the social status, educational level
of the parties, the society they move in, the possibility or otherwise
of the parties ever living together in case they are already living
apart and all other relevant facts and circumstances which it is
neither possible nor desirable to set out exhaustively. What is cruelty
in one case may not amount to cruelty in another case. It is a matter
to be determined in each case having regard to the facts and
circumstances of that case. If it is a case of accusations and
allegations, regard must also be had to the context in which they were
made.''

In that case it was found on facts that wife made a false complaint to
the police which reflected adversely on the husband's reputation in the
society. Marriage of the parties had broken down. The apex court,
therefore, allowed the appeal and granted divorce. In the present case,
the situation is still worse. Not only the wife made a false complain
and got the husband and other in-laws arrested, she also took money and
then resiled from the agreement. Admittedly, the husband and wife are
living separately since September 1993. Learned Additional District
Judge took note of this conduct of the appellant and held that it
clearly amounts to an act of cruelty.

Taking over all view of the matter, I think, learned Additional
District Judge has rightly allowed the petition and passed a decree of
divorce under sections 13 (1) (ia) of the Act in favour of the
respondent-husband. I am not inclined to take a different view in the
matter.

In the result, this FAO 67/2000 filed under section 28 of the Act
against the impugned order dated 24.12.1999 fails and is hereby
dismissed. All pending applications also stand disposed of.

January 31, 2005 O.P.DWIVEDI J.

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