Thursday, January 25, 2018
whether presence of couple or parties staying abroad are required to appear in court in mutual divorce
“Where the parties are living far away from the jurisdiction of the Court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. Attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. The Courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the Court on behalf of their principal in all other cases. The attorney can also act in matrimonial cases as per instructions of their principle. The Court can take necessary precautions to prevent frauds being perpetuated on it but unless the Court smells some kind of fraud being played with it, the Court should normally recognize the act of the attorneys. “
IN COURT OF THE HIGH DELHI AT NEW DELHI
SUBJECT : Divorce Act
Date of Reserve: September 05, 2008
Date of Order: September 19, 2008
Mr. Vinay Jude Dias ... Petitioner Through: Mr. Sandeep Sethi with Mr. Anshu Mahajan and Mr. Vikas Aggarwal, Advs.
Ms. Renajeet Kaur ... Respondent
1. The petitioner is aggrieved by an order of learned ADJ dated 25th August, 2008 whereby in a Divorce Petition by mutual consent filed by the petitioners, the Court directed personal appearance of both the parties for purpose of its satisfaction regarding an inquiry under Section 10(A) of the Divorce Act.
2. Notice of the petition was accepted by the respondent in the Court and respondent supported the petition and wanted the petition to be allowed. Thus, the Court has only to examine whether the personal appearance of the petitioner before the Court below was necessary in order to obtain divorce with mutual consent under Section 10(A) of Divorce Act.
3. In the present case, the special power of attorney in favour of one Mr. Lal Babu Tiwari was executed by the petitioner (husband) to appear before the Court and testify about the contents of the petition. The petitioner has signed the petition before Indian consulate High Commission of India in UK under Section 3(2) of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1947 under which the documents do not require any further evidence.
4. The learned ADJ relying on Janaki Vasudeo Bhojwani Vs. IndusInd Bank Ltd. AIR 2005 SC 439 wherein Supreme Court had held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become witness on behalf of party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself, considered that the attorney cannot depose in the Court to satisfy the inquiry as required under Section 10(A) of Divorce Act.
5. There can be no dispute that the attorney of the petitioner can appear in the Court on behalf of the party and do the act as specified in power of attorney. An attorney is not an incompetent witness. He can appear in the Court and depose in the Court as a witness in respect of facts which are in his knowledge. He cannot depose in respect of the facts which are not in his knowledge and knowledge of which has been derived by him from principal without witnessing the facts himself. However, if an attorney has witnessed all those facts himself which were also witnessed by the principal, an attorney cannot be told that he cannot appear in the witness box and depose in the Court in respect of the facts known to him. Facts which are within the special knowledge of principal and are not in the knowledge of attorney can only be deposed by the principal. Whether the parties were married on a particular day, is not a private act of the parties. Marriage is normally a public act in this country and evidence can be given by anyone who has knowledge of the fact. Whether the parties are living separate or not is also known to other people associated with the parties and is not something secret. Similarly, for how long parties were living separate can be deposed in the Court by any person who is aware of the facts. If an attorney aware of these facts and can answer the questions of the Court, the attorney cannot be told that he is not a competent witness or his statement would not be recorded. Similarly an attorney, on the basis of instructions/directions given to him, can answer the queries, if there was any possibility of parties patching up and living together or the marriage has broken down irretrievably. An attorney has to be allowed to appear in the witness box and make statement. The Court may reject that part of his statement which is based on hearsay or which he has no personal knowledge. But he cannot be prevented from appearing in the witness box and deposing and answering the queries. Same is the import of judgment of Supreme Court in Janaki Vasudeo Bhojwani (supra) wherein Supreme Court had not debarred an attorney from appearing in the witness box but the Supreme Court has stated the facts which are only in the knowledge of the principal, about those facts attorney cannot testify in the Court.
6. This Court in Neelima Chopra vs. Anil Chopra 1986 (11) DRJ 188 held that if both the parties, by way of affidavits or through counsel, state that they are married, and are able to produce proof of the marriage and that they have been living separately and have not been able to live together for the prescribed period, then there can be no reason as to why the Court should not record its satisfaction as envisaged under Section 13-B(2) of Hindu Marriage Act, despite the fact that parties had not appeared in person and pass a decree for divorce.
7. The Division Bench of Calcutta High Court in Annalie Prashad vs. Romesh Prashad AIR 1968 Calcutta 48 had made following observations : 3. In our opinion, neither of the above two reasons can be sustained in law. The Special Marriage Act by Section 40 attracts the Code of Civil Procedure subject, of course, to the other provisions of the said statute and to such rules as the High Court may make in that behalf. The learned trial Judge does not say that there is anything in the statute or in the rules, which would conflict with the view that affidavit evidence would be permissible, unless we agree with him that the Act, having prescribed that the parties should be heard, would necessarily require their personal appearance or presence before the Court. We do not, however, think that that is the consequence of the words ``hearing the parties'` and, accordingly, the reason given by the learned trial Judge in that behalf cannot be accepted We are also unable to agree that, in a case of divorce by mutual consent, affidavit evidence should be excluded on the ground that in such a case, it is desirable that the parties themselves should be present in Court. In the premises, Order 19 of the Code of Civil Procedure would be attracted by the above special statute as part of the Code and would not be excluded either expressly or by necessary implication.
8. Where the parties are living far away from the jurisdiction of the Court competent to dissolve the marriage, the parties after filing their affidavits can appoint attorneys to act on their behalf. Attorney is competent to act on behalf of the principal on the basis of power of attorney executed by the principal. The Courts have been allowing attorneys to file the petition, to withdraw the petition, to carry on proceedings in the Court on behalf of their principal in all other cases. The attorney can also act in matrimonial cases as per instructions of their principle. The Court can take necessary precautions to prevent frauds being perpetuated on it but unless the Court smells some kind of fraud being played with it, the Court should normally recognize the act of the attorneys.
9. I therefore allow this petition. The order of the Trial Court insisting on the personal appearance of the parties is set aside. The attorneys are permitted to make statement before the Court below.
Sd./- September 19, 2008
SHIV NARAYAN DHINGRA J.
Wednesday, January 24, 2018
Divorce granted to husband on Grounds of cruelty, Desertion and False criminal Cases and Adultery.
“The contention of the husband was that the appellant was in the habit of quarrelling with him on petty issues without any cause and reason and had even refused to prepare food for him and do the household chores. She also humiliated him in the presence of his friends on several occasions by refusing to serve them tea. The appellant never wanted to stay with him or his parents at the village and always used to force him to drop her at her parental home; she did not have any love and affection for him and his parents; that the appellant had also pressurised him to leave the job and settle down in Delhi; he bought a land in Burari and constructed two storey house from his savings but the appellant preferred staying in her parental home at Gulabi Bagh, Delhi and used to come to their newly constructed house once a week. The husband had all along supported the appellant and their children financially as well as morally. When the construction of the house was completed, the appellant had refused to live with him at the place of his posting. She also forced her mother-in-law to leave the house who thereafter started living in her native village. She used to say that "yeh log hamare status kay neie hain."
On these facts, the respondent/husband had alleged that he had suffered severe mental agony, tension, harassment and distress and that the behaviour of the appellant had caused him great anguish and amounted to cruelty. He had alleged that the appellant had also deserted him since she had refused to live with him. He had also averred that they had been living separately since March 2006 and it was not possible for him to continue living with her since there was a danger to his life and limb.
The first contention of the appellant is that the learned Family Court has given undue weightage to the evidence of the respondent and has discarded the evidence of the appellant. However, this contention has no merit. On the contrary, the evidence on record (including that of the appellant) was duly considered and distinguished and elaborately discussed in the impugned judgment and only thereafter the conclusion was drawn. Record shows that the appellant had examined herself alone in support of her pleas but here is no corroboration to her testimony. Several contradictions in her testimony have been discussed in the impugned judgment. Even otherwise, the burden to prove that the respondent/husband was subjected to cruelty by the appellant, was upon him and it was for him to discharge the same by leading cogent evidence.
The settled proposition of law in civil proceedings is that the principle of proof of a fact is established on a preponderance of possibility and the respondent/husband is not required to prove his case beyond a reasonable doubt. If the evidences on record points out to the existence of a particular fact, then the said fact can be accepted as having been proved. We may note that the expression "cruelty" has not been defined under the HMA. Cruelty can be mental or physical. It is easy for a party to prove physical cruelty, but mental cruelty depends on various factors.
. In the case of G.V.N. Kameswara Rao vs. G. Jabilli reported at (2002) 2 SSC 296, the Supreme Court had observed that false police complaints would result in mental cruelty as it leads to loss of reputation and standing in the society at the instance of one's spouse. The act of leveling of unsubstantiated charges of adultery against the husband not only during the stay of the spouses together, but also during the divorce proceedings was treated as an act of cruelty on the part of the wife.
In R. Balasubramanian vs. Vijaylakshmi Balsubramanian (SMT) reported at (1999) 7 SCC 311, the Supreme Court held that an
unfounded allegation of adultery is a serious allegation amounting to cruel conduct, and found that these factors cumulatively proved cruelty on the part of the appellant therein for entitling the husband to dissolution of the marriage.
In the case titled Santosh Sahay vs. Hanuman Sahay reported as 2016 IX AD (Delhi) 1, a Division Bench of this Court has held that false character assassination and allegations of such a nature made by a spouse amounts to mental cruelty and the wronged spouse is entitled to seek divorce on that ground.
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAT.APP.(F.C.) 95/2017, CM No. 19921/2017, CM No. 19923/2017
SANTOSH ..... Appellant
Through: Mr. Gaurav Choudhary, Advocate
along with Mr. Jaswinder Singh,
Advocate along with appellant in
HORI LAL ..... Respondent
HON'BLE MR. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE DEEPA SHARMA
HON'BLE MS. JUSTICE DEEPA SHARMA
1. Vide the present appeal, the appellant has challenged the order dated 31.03.2017 passed by Principal Judge (Family Court), Tis Hazari, Delhi whereby her marriage with the respondent was dissolved under Section 13 (1) (ia) & (ib) of Hindu Marriage Act, 1955 (hereinafter referred to as "HMA").
2. As per the admitted facts, the marriage between the appellant and the respondent was solemnized in Delhi on 29.06.1993, according to the Hindu rites and ceremonies. The marriage was consummated and two children, one female and one male child were born from out of this wedlock. The respondent has been working with the Border Road Organization and at all times, has remained posted at different border areas of the country.
3. The petition for divorce was filed by the respondent (hereinafter referred to as "respondent/husband"). The case of the husband was that the marriage was very simple and after the marriage, he took the appellant to the matrimonial home at Village Bhopal Garhi Post Kurhar Distt, Etah, UP and stayed there for about 40 days. When he left for his duty, he left the appellant at her parental home on her request. After some time, the appellant joined him at his place of posting at Arunachal Pradesh where they stayed happily. She became pregnant and insisted upon the respondent/husband that she will deliver the first child at her parental home at Delhi and so, he brought her to Delhi and left her at her parental home. A female child was born on 29.03.1994. After about two months i.e. in May 1994, he took the appellant to his place of posting i.e. Arunachal Pradesh along with the minor daughter. The second child was born on 04.05.2002.
4. The contention of the husband was that the appellant was in the habit of quarrelling with him on petty issues without any cause and reason and had even refused to prepare food for him and do the household chores. She also humiliated him in the presence of his friends on several occasions by refusing to serve them tea. The appellant never wanted to stay with him or his parents at the village and always used to force him to drop her at her parental home; she did not have any love and affection for him and his parents; that the appellant had also pressurised him to leave the job and settle down in Delhi; he bought a land in Burari and constructed two storey house from his savings but the appellant preferred staying in her parental home at Gulabi Bagh, Delhi and used to come to their newly constructed house once a week. The husband had all along supported the appellant and their children financially as well as morally. When the construction of the house was completed, the appellant had refused to live with him at the place of his posting. She also forced her mother-in-law to leave the house who thereafter started living in her native village. She used to say that "yeh log hamare status kay neie hain."
5. The husband had referred to the incidents that took place in February 2006, which ultimately culminated in their separation. He alleged that on MAT.APP.(F.C) 95/2017 Page 3 26.02.2006, he had informed the appellant, on telephone, at around 8 p.m. that his father was unwell and that he was taking leave to visit him and asked her to accompany him to the village. However, once he reached Delhi, the appellant refused to accompany him to the village. She also refused to join him at his place of posting along with the children. She and her parents beat him on his visit to her parental home. He visited his house at Burari on 04.03.2006 where the appellant and her parents quarrelled with him and registered a false case against him under Section 107/150 of CrPC. He left for his village on 05.03.2006 and returned to Delhi on 07.03.2006 and went to his house at Burari and found that the appellant had removed all the household goods and had filed a false complaint under Section 498A/406/34 of IPC before Crime against Women Cell after 13 years of their marriage, alleging inter alia that he had demanded dowry of Rs. 35.00 lakhs. The respondent/husband was arrested in the FIR No. 61/2006 on 04.04.2006 and remained in judicial custody for about 20 days. With the help of police, the appellant removed the remaining articles from his house at Burari. She also removed all the jewellery lying in the locker at State Bank of India, Pratap Nagar, Delhi on 06.03.2006. She also filed several civil and criminal cases against him and his relatives on false and frivolous MAT.APP.(F.C) 95/2017 Page 4 grounds, just to harass and torture the husband. The appellant did all this with the intention of extracting more money from him and his relatives. Details in this respect have been furnished by the husband in para No. 15 of his petition. It was also averred that she had filed various complaints against the husband in different departments and authorities, which on investigation, were found to be false and baseless and that she had been making defamatory complaints against him and his family members.
6. On these facts, the respondent/husband had alleged that he had suffered severe mental agony, tension, harassment and distress and that the behaviour of the appellant had caused him great anguish and amounted to cruelty. He had alleged that the appellant had also deserted him since she had refused to live with him. He had also averred that they had been living separately since March 2006 and it was not possible for him to continue living with her since there was a danger to his life and limb.
7. The suit was contested by the appellant who filed her written statement wherein she had denied all the averments in the plaint, being false. She had further averred that she was forced to withdraw the FIR and other proceedings filed by her under compelling circumstances and since she did not want to take divorce from the husband, she did not file any suit MAT.APP.(F.C) 95/2017 Page 5 for divorce and that the respondent was taking undue advantage of his own wrong doings and that of his parents, sisters and brother-in-law. Her contention was that it was she, who had been treated with utmost cruelty by the husband and his family members. Her husband failed to maintain her and their two children and they were at the mercy of her father for day-to- day necessities and their school fees was also paid by her father. As per her version, their marriage was solemnised with great pomp and show and her parents had spent lakhs of rupees on their marriage and dowry articles, gifts and cash was given in the marriage which did not satisfy the husband and his family members who kept on raising demands and started harassing and treating her with cruelty, forcing her to fulfil their demands for brining additional dowry and cash amounts.
8. The appellant claimed that the respondent/husband demanded a Santro car on 28.02.2006 which her parents failed to provide. This refusal enraged the husband. He and his brother asked her to sign on certain blank papers and on her refusal to do so, and in view of the inability of her parents to provide a new Santro car, the respondent/husband got so infuriated that he did not allow her to enter the house. She was beaten by him and his other relatives and sustained injuries. She admitted that she MAT.APP.(F.C) 95/2017 Page 6 had filed a complaint under Section 107/150 of the CrPC against him and his family members on 04.03.2006. It was also contended that she was forced to live in Delhi with her parents because husband refused to keep her at the place of his posting for the reason best known to him.
9. It was further averred by the appellant that she had been fulfilling all the obligations as a devoted wife and had always remained faithful to the respondent; she was always ready and willing to accompany the respondent/husband to his native village to look after her ailing father-in- law but he had refused to take her along with him to the village. On 04.03.2006 when she was beaten up, she had been medically examined. It was contended that it was her father who had purchased plot no. 55, Block A, Gali No. 8/1, Kaushik Enclave Swaroop Nagar Road, Burari, Delhi measuring 100 square yards in her name and constructed double storeyed house over it; that the husband had fraudulently procured her signatures on a General Power of Attorney executed in his favour and sold the house first to his brother, Sh. Bhopal Singh on 08.03.2006 and thereafter, to Mr. Satish Sisodia for a sum of Rs. 6,25,000/- and mis-appropriated the sale proceeds. The appellant urged that the respondent/husband could not be allowed to MAT.APP.(F.C) 95/2017 Page 7 take advantage of his own wrong and thus, was not entitled for a decree of divorce.
10. On the basis of the pleadings of the parties, on 26.08.2009, the learned Trial Court had framed the following issues:-
"(1) Whether the respondent has treated the petitioner with cruelty? (OPP)
(2) Whether the respondent has deserted the petitioner for a period of more than two years before the filing of the present petition? (OPP)
11. Both the parties had led their evidence. The respondent/husband had examined five witnesses in support of his case. In his statement, the petitioner/husband proved on record, the complaints filed by the appellant against him and marked as A to E. He also summoned a witness from the bank to prove that locker bearing no. 192 in the joint name of the parties was lastly operated by the appellant on 06.03.2006. The said record was exhibited by the witness as Ex.PW 2/1 to Ex. PW 2/5. The appellant, however, examined herself alone in support of her case. After hearing the parties at length and considering the evidences on record, the learned Trial Court reached the conclusion that the appellant had treated the respondent with cruelty and that she had deserted him without any just cause and resultantly, dissolved their marriage. Hence the present appeal.
12. The appellant has challenged the impugned order on the grounds that the learned Family Court has not properly appreciated the evidence on record and did not take into consideration the torture and the harassment she was subjected to; that reliance on the evidence of the respondent and rejection of the testimony of the appellant is unfounded; that the learned Family Court failed to consider the contradictions in the testimony of the respondent and the fact that the husband has not been able to produce any corroborative evidence to prove the allegations levelled by him against the appellant; that the Family Court failed to take into account the fact that it was the respondent who had treated the appellant with cruelty and, therefore, he cannot be permitted to take advantage of his own wrong in view of the provisions of Section 23 of HMA. It was also contended by Mr. Chaudhary, learned counsel for the appellant that the learned Family Court has wrongly granted divorce on the ground that the marriage between them has broken down because no such ground is available for divorce under the HMA. It is therefore prayed that the impugned judgment being illegal, perverse and contrary to law, is liable to be set aside.
13. We have heard the arguments addressed by learned counsel for the appellant and gone through the LCR which includes the pleadings and evidence of the parties.
14. The first contention of the appellant is that the learned Family Court has given undue weightage to the evidence of the respondent and has discarded the evidence of the appellant. However, this contention has no merit. On the contrary, the evidence on record (including that of the appellant) was duly considered and distinguished and elaborately discussed in the impugned judgment and only thereafter the conclusion was drawn. Record shows that the appellant had examined herself alone in support of her pleas but here is no corroboration to her testimony. Several contradictions in her testimony have been discussed in the impugned judgment. Even otherwise, the burden to prove that the respondent/husband was subjected to cruelty by the appellant, was upon him and it was for him to discharge the same by leading cogent evidence.
15. The settled proposition of law in civil proceedings is that the principle of proof of a fact is established on a preponderance of possibility and the respondent/husband is not required to prove his case beyond a reasonable doubt. If the evidences on record points out to the existence of MAT.APP.(F.C) 95/2017 Page 10 a particular fact, then the said fact can be accepted as having been proved. We may note that the expression "cruelty" has not been defined under the HMA. Cruelty can be mental or physical. It is easy for a party to prove physical cruelty, but mental cruelty depends on various factors.
16. In Samar Ghosh vs. Jaya Ghosh reported at (2007) 4 SCC 511 while dealing with the concept of mental cruelty, the Apex Court has observed as under:
"99. The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound; therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances...."
17. Further, in Ravi Kumar vs. Julmidevi reported at (2010) 4 SCC 476, the Supreme Court held that cruelty is to be judged from the behavior, taking into account the entire facts and circumstances of the case and observed that:-
"20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety--it may be subtle or even brutal and may be by gestures and words..."
18. Therefore, there is no mathematical formula to assess cruelty. If the consistent behaviour of a spouse is of such a nature as to causes pain, discomfort or it brings disrespect or disrepute to the other spouse, such behavior would constitute cruelty. Trust, mutual respect, understanding and commitment sustain a marriage. When two persons live together in matrimony, it is expected that they will be tolerant towards each other's attitude, behaviours, moods etc. and not be over sensitive towards innocent and natural behaviour/attitude or stray mood swings of the spouse.
Spouses are expected to be supportive of each others' needs and MAT.APP.(F.C) 95/2017 Page 12 requirements which includes extending due respect to the family members of the spouse.
19. While appreciating the evidence in such matters, in Deb Narayan Halder vs. Anushree Halder reported at (2003) 11 SCC 303, the Supreme Court held that Courts should rely on evidence, which is contemporaneous and observed as under:-
20.....In cases where there is a dispute between husband and wife it is very difficult to unravel the true reason for the dispute. After separation when the relationship turns sour, all sorts of allegations and counter allegations are made against each other. Evidence of contemporaneous nature therefore plays an important role in such cases as it may reveal the thinking and attitude of the parties towards each other at the relevant time. Such evidence is usually found in the form of letters written by the parties to each other or to their friends and relatives or recorded in any other document of contemporaneous nature. If really the respondent was subjected to cruelty and harassment in the manner alleged by her, we have no doubt she would have written about such treatment to her friends and relatives with whom she may have corresponded..."
20. The evidence brought on record clearly reveals that the parties got married on 29.06.1993 and from the period from 1993 to 2001, the appellant had been staying with the husband at the place of his posting and she was visiting her parents in Delhi during this period. The husband was employed in the Border Road Organization and was posted to different MAT.APP.(F.C) 95/2017 Page 13 places outside Delhi including Arunachal Pradesh. The appellant had stayed with him at those places but she had not written any letter even to her parents, complaining about the misbehaviour of the respondent. There appears no dispute between them during their entire stay at the places of posting, as no complaint of any nature had been filed by the appellant before any authority in this regard. It is also evident that the appellant did not produce any document which could suggest that she had any complaint of any nature against the respondent during her stay with him.
21. During this entire period, till the filing of the complaint of demand of dowry under Section 498 A IPC, no complaint of any nature has been placed on record by the appellant against the respondent. The evidence also shows that the appellant started living in the Burari house since the year 2001 and during this period, the respondent had been visiting her in that house. The appellant has also failed to prove that it was her father who purchased the property in her name. No document has been produced on record by the appellant to prove that she was the registered owner of the property and it was sold by the respondent by fraudulently obtaining her signatures on a Power of Attorney. No document was also produced on record to prove that the construction undertaken over the plot was raised by MAT.APP.(F.C) 95/2017 Page 14 her father. During the existence of a marriage of about 13 years, no complaint of demand of dowry was ever lodged by the appellant against the respondent or his family members.
22. Apparently, the dispute between the parties arose sometime in March 2006. The appellant has not disputed that in March 2006, the respondent wanted to visit his ailing father at the village and he did visit him. While respondent/husband contends that it was the appellant who had refused to accompany him, the appellant took the plea that he did not take her along, which she had failed to substantiate by leading any evidence. The appellant has not produced any substantive evidence in support of her contention that she had been visiting her in-laws in the village. On the contrary, the evidence on record clearly shows that whenever she was in Delhi, she used to reside with her parents. Although she has contended that the respondent was not providing her money towards her maintenance and that of their children and it was her father who was bearing all the expenses during her stay in the Burari house, she has not produced any evidence to prove that the school fees of the children was being paid by her father. In fact, she has failed to examine her father. It is also a fact that the appellant never made any complaint to anyone including the respondent's department MAT.APP.(F.C) 95/2017 Page 15 to the effect that he was not giving them any money for their subsistence, nor had she filed any case claiming maintenance from him. There is no contemporaneous evidence on record which can even remotely suggest that the respondent had demanded dowry and that he and his family members had beaten the appellant or that he was not taking care of her and children and was not providing financial support to them.
23. The other plea of the appellant is that her husband and his family members used to demand dowry and harass her and had demanded a Santro car on 04.06.2006 and, on refusal, beaten her and turned her out of the house, thus compelling her to file a complaint under Section 498A. It turns out that the husband was discharged in the said case under Section 498A IPC, which only goes to show that there was no substance in the allegations made by the appellant in her complaint under Section 498A IPC. She has also contended that the respondent had forced her to abort their child against her wishes, but has failed to produce any evidence on record to prove the said allegations. During the cross-examination of Sh. Bhopal Singh (PW-4), the respondent's witness, a suggestion was made that the respondent had got married to another women but it remained a mere suggestion, without any proof. The appellant has also admitted in her MAT.APP.(F.C) 95/2017 Page 16 testimony that the respondent had visited her at her parental home at Gulabi Bagh, Delhi on 28.02.2006 and that after 28.02.2006, she had never visited Etah, UP, where her in-laws reside.
24. On the other hand, the respondent has produced on record the evidence to demonstrate that the appellant had removed all the items lying in the locker held in their joint names, without obtaining his consent. The witness from the Bank, PW-2 had duly proved the fact that the locker was operated lastly by the appellant on 06.03.2006. This fact clearly shows that after the alleged incident of 04.03.2006, the appellant had taken out all the articles lying in the locker without the consent of her husband. The respondent has also examined PW-3 who brought the records from the Border Roads Organisation which proves the fact appellant had filed that several complaints making various allegations against the respondent not only in his office, but also to several other authorities with a copy marked to his office. Enquires were made into the allegations in the complaints, but no substance was found therein and ultimately, the respondent was exonerated. The husband had taken a plea that this act of the wife had caused him grave distress, agony and had also lowered his reputation in the department, among his friends and colleagues and in the society.
25. In the case of G.V.N. Kameswara Rao vs. G. Jabilli reported at (2002) 2 SSC 296, the Supreme Court had observed that false police complaints would result in mental cruelty as it leads to loss of reputation and standing in the society at the instance of one's spouse. The act of leveling of unsubstantiated charges of adultery against the husband not only during the stay of the spouses together, but also during the divorce proceedings was treated as an act of cruelty on the part of the wife. In R. Balasubramanian vs. Vijaylakshmi Balsubramanian (SMT) reported at (1999) 7 SCC 311, the Supreme Court held that an unfounded allegation of adultery is a serious allegation amounting to cruel conduct, and found that these factors cumulatively proved cruelty on the part of the appellant therein for entitling the husband to dissolution of the marriage.
26. In the present case, the evidence clearly establishes the facts that the appellant had filed a false criminal complaint under Section 498 A of IPC, and Court had discharged the respondent. On her complaints, the department had also conducted enquiry against the respondent and thereafter, exonerated him, finding no truth in such complaints. Further, during the trial, the appellant had taken a stand that her husband had got remarried to another woman by giving an suggestion of this nature to PW-4, but could not prove it.
27. In the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate reported as (2003) 6 SCC 334, the Supreme Court has settled the proposition of law by observing as under:-
"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that disgusting levelling accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court.
We find that they 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 for her to live with a husband who was taunting her MAT.APP.(F.C) 95/2017 Page 19 like that and rendered the maintenance of matrimonial home impossible." (emphasis added)
28. Again, in a recent decision in the case of Narendra vs. K. Meena reported as AIR 2016 SC 4599, applying the ratio of its earlier decision in the case of Vijaykumar (supra) the Supreme Court has reiterated that unsubstantiated allegations if levelled, amounts to mental cruelty and is a ground for divorce under Section 13(1)(i-a) of the Act. In a very recent judgment in the case of Raj Talreja vs. Kavita Talreja reported as AIR 2017 SC 2138, relying on the ratio of an earlier decision in the case of Ravi Kumar (supra), the Supreme Court has held that "reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of peers" amounting to cruelty. In the case titled Santosh Sahay vs. Hanuman Sahay reported as 2016 IX AD (Delhi) 1, a Division Bench of this Court has held that false character assassination and allegations of such a nature made by a spouse amounts to mental cruelty and the wronged spouse is entitled to seek divorce on that ground.
29. To sum up, the allegations leveled by the appellant which she failed to substantiate even on the yardstick of preponderance of evidence, are of such a nature that would have lowered the image of the respondent in the eyes of his superiors, subordinates and peers and this act would certainly constitute cruelty. It is an undisputed position that the parties have been living separately since 04.03.2006 and in all this duration, the appellant seems to have made no effort to join the company of the respondent. Rather, her act of 06.03.2006 of cleaning out the joint locker of the parties shows an animus descendi.
30. In view of the above discussion, we are of the opinion that the findings of the learned Trial Court are based on the evidence on record. The argument of learned counsel for the appellant that the learned Family Court had given more weightage to the evidence of the respondent is turned down as baseless. We find no reason to unsettle the impugned judgment which is accordingly upheld. As a result, the appeal is dismissed in limine with no order as to costs.
DEEPA SHARMA (JUDGE) HIMA KOHLI (JUDGE)
Tuesday, January 9, 2018
What is Adultery and when can it be proved in Court ?
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offense of adultery.
According to Hinduism dictionary,” Adultery is sexual intercourse between a married man and a woman not his wife, or between a married woman and a man not her husband.”
adultery is, as a general rule, proved by presumptive proof based upon;
(a) circumstantial evidence;
(b) evidence of non-access and the birth of children;
(c) contracting venereal diseases;
(d) by evidence of visits to house of ill-repute;
(e) decrees and admissions made in previous proceedings; and
(f) confessions and admissions of the parties which should be generally corroborated though in exceptional circumstances, even if uncorroborated may be acted upon.
Therefore, it is important to understand that mere bald allegations by a spouse that his/her partner was having adulterous relationship with his/her lover after marriage, in absence of any cogent evidence, would not be sufficient to prove.
What is the Punishment in Indian Penal Code ?
In India the offence of adultery is punishable under Section 497 of the Indian Penal Code (IPC), 1860. As it stands, this Section makes only men having sexual intercourse with the wives of other men without the consent of their husbands punishable and women cannot be punished even as abettors.
Section-497- Adultery “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.
What is the Legal Position when refusal to have sexual intercourse by Partner ?
Whether refusal to have sexual intercourse amounts to cruelty or not depends upon the facts and circumstances of each case. Sexual intercourse is just one of marital rights. No doubt, the denial of sexual relations causes frustration and misery to the aggrieved party and is likely to destroy the fibre of marriage yet reasonable denial on the part of either party does not constitute cruelty. This aspect of marital obligation has been dealt with in most elaborate manner in Jacobson vs. Jacobson, 130 Ny.S.II D 762. It is observed that this obligation is of a personal and delicate nature and depends on sentiments and feelings to such an extent that it would be an intrusion into the privacy of domestic life to stipulate reasonable denial on the part of either party to submit to marital intercourse constitutes cruelty. Such denial does not constitute cruelty even though refusal to have marital sexual relations undermines the essential structure of a marriage.
What is the definition of adultery in Divorce Laws:
Thus the adultery is to be inferred from circumstances which must indicate inclination, guilty
intention and opportunity to commit adultery. Bed room evidence is one of such strong circumstances as way back in 1909 in Kerr v. Kerr, 114 App. Div. 1421, it was observed that where man and a woman who are not husband and wife have bed room privacy, there is strong inference of adultery as they do not sing prayers there.
Delhi High Court
Smt. Linda Constance Edwards vs Shri William Edwards & Anr
Equivalent citations: 2001 IIIAD Delhi 482, 91 (2001) DLT 355, I (2001) DMC 746, 2001 (58) DRJ 731
ORDER J.D. Kapoor, J.
1. Marriage between the parties who are Christians took place more than 25 years ago. Its dissolution has been sought on the ground of cruelty coupled with adultery.
2. It is alleged that right from day one respondent No.1, i.e. the husband started exhibiting symptoms of cruelty, apathy and lack of interest towards the petitioner and somehow or other the petitioner pulled on with the marriage till the year 1978 in the hope that the respondent No.1 may change. The impression of the petitioner was that the problems of his character may be due to temperament and not a basic trait of his character that may be incorrigible or unchangeable. That off and on the respondent No.1 used to come home fully drunk and indulged in physical beatings. However, when all efforts failed, the petitioner found that respondent No.1 was psychologically ill and has maniac traits right from his childhood and his character is unsuitable for a marital life and so much so the doctors, psychologists and priests have advised him not to entry into a marital life but the respondent No.1 played a fraud upon the petitioner and obtained her consent. In spite of the fact that two children were born to the petitioner during the three years of their joint stay the respondent No.1 developed hatred towards her and stopped having intercourse with her and rather spurned and rejected the advances and offers sometimes fiercely and sometimes in most hateful manner from 1978 to 1980. It is further alleged that during 1978-1980 respondent No.1 used to beat the petitioner almost daily and also used to remain absent from home continuously for 2-3 days without any reason or intimation.
3. On making inquires through friends and relatives the petitioner came to know that respondent No.1 was having illicit relationship with woman of bad character named Ms. Sonia residing in Paharganj area. When she objected to respondent No.1's conduct and absenteeism and cruel behavior towards the petitioner and his adulterous affairs he became violent and threw the petitioner and children out of matrimonial home. However, the repeated entreaties did not find favor and he refused to accept the petitioner and children back to matrimonial home. Being compelled by the circumstances she undertook a job for her survival as also for survival of the children.
4. Now for the last five years the respondent No.1 has been living with another woman Ms.Rubi Mehra, respondent No.2, and when petitioner requested him to leave respondent no. 2 and accept petitioner and children back he did not pay any heed and when she approached his mother, she also expressed her inability by saying that he was no more under her control.
5. Last attempt to reconcile and mend respondent No.1 was made by the petitioner on 28.9.1997. At about 2.30 afternoon she went to the house where respondent No.1 has been living with aforesaid Ms.Rubi Mehra and finding no response from the doorbell and knock at the door she tried to open the door and moment she pushed it, it got opened since no latch was put inside. When she went inside and did not find anybody in the drawing room, she proceeded to the bedroom and knocked at the door. The respondent No.1 removed the latch and half-opened the door but when she pushed it, respondent No.1 lost the control of his hold and the door got opened. She saw respondent No.2 lying in the bed stark naked. She pulled the bed sheet and covered herself. The only inference was that both of them were having sexual intercourse at that time. Respondent No.1 became very angry and hurt the petitioner on her face and pushed her out of the room and abused her by calling her a bitch and also threatened to kill her in case she again tried to enter the house. Thus, the respondent no.1 has not only committed physical and mental cruelty upon the petitioner but has also been committing adultery since long apart from deserting her and her children.
6. In spite of having been served with the notice of the petition, none of the respondents came forward to contest it. The petitioner filed the affidavit by way of evidence in support of aforesaid allegations.
7. As is apparent, there are allegations of physical beating, remaining absent for days from the matrimonial home without information or intimation and having adulterous affairs with two women and lastly having been found in suspicious and questionable circumstances with respondent no.2 in the bed room and the long desertion of the petitioner and the children and failure of all efforts on the part of the petitioner to bring back the respondent no.1 on the path of virtue or attend the husbandly duties.
8. It is no more valid to say the cruelty occurs only when there is bodily harm or infliction of physical blows endangering life, limb or health. The concept of cruelty in marital relations has widened its net and brought the mental cruelty into its fold. Since element of happiness in marriage has gained currency, the definition of cruelty cannot be put in strait-jacket manner. Marital cruelty which includes mental cruelty also has been enunciated by the Supreme Court in , V. Bhagat vs. Mrs. D.Bhagat. as under :-
"Mental cruelty in S.13(1)(ia) 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 prove that the mental cruelty is such as to cause injury to the health of the petitioner."
9. Thus it is not always essential that a course of conduct should aim at causing mental pain and suffering in order to constitute the cruelty. It is the effect produced by the course of conduct and acts of a spouse and not the motive that is relevant. It has been rightly said that sometimes words inflict a more painful blow and cause psychological sufferings and emotional distress than physical cruelty, though occasional bickerings or pinpricks are part of normal marital life as human fragility generates such skirmishes.
10. Whether refusal to have sexual intercourse amounts to cruelty or not depends upon the facts and circumstances of each case. Sexual intercourse is just one of marital rights. No doubt, the denial of sexual relations causes frustration and misery to the aggrieved party and is likely to destroy the fibre of marriage yet reasonable denial on the part of either party does not constitute cruelty. This aspect of marital obligation has been dealt with in most elaborate manner in Jacobson vs. Jacobson, 130 Ny.S.II D 762. It is observed that this obligation is of a personal and delicate nature and depends on sentiments and feelings to such an extent that it would be an intrusion into the privacy of domestic life to stipulate reasonable denial on the part of either party to submit to marital intercourse constitutes cruelty. Such denial does not constitute cruelty even though refusal to have marital sexual relations undermines the essential structure of a marriage.
11. It is further observed that, if refusal is occasional, or for a short period, it is against public policy to treat it as cruelty. However, complete failure to have sexual intercourse for a prolonged period or its total or irrevocable negation despite advances and requests does constitute cruelty as in the absence of an adequate excuse such refusal strikes at the basic obligations springing from marriage undermining its essential structure.
12. For instance a denial on the ground of ill health or say after child birth or for some such reasons including excessive or obsessive sexual demands of a spouse may fall in the category of reasonable denial.
13. Here for several years the petitioner has been denied the sexual relations despite her advances and requests even during the period both were living under the same roof. Such denial is total negation of one of the most important marital obligations and amounts to cruelty.
14. Though the statutory provisions of Section 10 of the Indian Divorce Act all for proof of adultery also if the divorce is sought on the ground of cruelty but in view of the view taken by the Special Bench of Kerala High Court in , Ammini E.J. and etc. v. Union of India and others and the Full Bench of Maharashtra in , Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc., it is no more necessary for a party seeking divorce on the ground of cruelty to prove adultery.
15. In Ammini's case (supra) the provisions of Section 10 were held to be violative of Article 21as well as 14 of the Constitution of India as they compel a deserted or cruelly treated Christian wife to live perpetually tied down to a marriage which has for all intents and purposes ceased to exist as a result of desertion and cruelty shown by the husband concerned are highly harsh and oppressive and as such arbitrary and violative of Article 14 of the Constitution of India. Christian spouses alone are not entitled to get dissolution of their marriage on the ground of cruelty and desertion even if perpetrated continuously for any length of time. They are entitled to get only a decree for judicial separation under Section 22 of the Act. Spouses belonging to all other religions governed by the other religions Acts are entitled to get dissolution of their marriage on the ground of cruelty and desertion for the period fixed by the respective Acts. The provisions of Section 10 are held to be discriminatory vis-a-vis Christians spouses merely on the basis of religion.
16. In Pragati's case (supra) the Bombay High Court also held the provisions of Section 10 as violative of Article 14, 15 and 21 of the Constitution of India for the following reasons:
"The different treatment which is accorded to Christian woman under S.10 of the Act is based merely on grounds of sex. Similarly, if one compares the provisions of the other enactments on the subject of divorce, it would be clear that Christian wives are discriminated and have been treated differently as compared to wives who are governed by the other enactments. The discrimination is, therefore, based merely on grounds of religion. The aforesaid discrimination, in the circumstances, is violative both, of Art. 14 and of Art. 15 of the Constitution. Similarly, if one has regard to the dealing with protection of life and personal liberty, it would be clear that the position of Christian women, has been rendered most demeaning as compared to Christian husbands, as also wives governed by other enactments. The provisions contained in S.10 in the circumstances, are violative of Art.21 also."
17. This being the position of law the petitioner is even otherwise entitled to decree of divorce on the ground of cruelty though she has also proved successfully the ground of adultery.
18. According to divorce laws, adultery is voluntary sexual intercourse of a married person with a person other than the offender's wife or husband. Rayden defines it as "Consensual sexual intercourse between a married person and a person of the opposite sex not the other spouse, during the subsistence of marriage. It is no more necessary that a person should continue living in adultery. Single act of intercourse constitutes adultery.
19. Here when the petitioner wife came to know that the respondent No.1 has started living with respondent No.2 at premises C-125, Dayanand Colony, Lajpat Nagar, New Delhi - 110024, she visited the premises and found the door closed. There was no response to the doorbell as well as the knock. She pushed open the door that led her to the drawing room. There was nobody. Feeling suspicious she knocked at the door of the bed room. The moment it was in the process of being opened, the petitioner pushed it open forcefully and found respondent No.2 lying stark naked in the bed. On seeing her, she pulled the bed sheet to cover her up.
20. It is said that the adultery is committed in darkness and secrecy and, therefore, it is difficult to provide a direct proof. Rather eyewitness account or photographic account of evidence of intercourse is taken as offending. A celebrated jurist Raydon in Raydon on Divorce observes that a direct evidence is rather apt to be disbelieved as it smacks of manipulation. It is rare that the parties are surprised in direct act of adultery. In the opinion of Sir William Scott in Lovedon vs. Lovedon, 2 Hagg Con, 1810, (Australian Family Law, p.455), "the only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion, for it is not to lead a harsh and intemperate judgment, moving upon appearances that are equally capable of two interpretations, neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man".
21. Thus the adultery is to be inferred from circumstances which must indicate inclination, guilty intention and opportunity to commit adultery. Bed room evidence is one of such strong circumstances as way back in 1909 in Kerr v. Kerr, 114 App. Div. 1421, it was observed that where man and a woman who are not husband and wife have bed room privacy, there is strong inference of adultery as they do not sing prayers there.
21. In the instant case sufficient bed room evidence has been furnished by the petitioner culminating in proof of adultery.
22. Taking over-all view and the long course of cruel conduct coupled not only with adulterous dispositions but actual indulgence in adultery, I feel pursuaded to allow the petition and grant decree for dissolution of marriage. Accordingly the marriage is dissolved. A decree sheet be prepared.