While taking a very strong, sensible and principled stand on wife filing unsubstantiated criminal complaint against husband thus thereby causing endless mental and physical trauma to him, the Delhi High Court has most commendably, courageously, correctly and convincingly in a recent, remarkably, refreshing and robust judgment titled X v Y in MAT.APP.(F.C.) 247/2019 and cited in 2022 LiveLaw (Del) 92 that was delivered as recently as on March 10, 2022 has dissolved marriage between a couple living separately for 12 years taking note of the fact that the wife had filed an unsubstantiated criminal complaint against the husband and his family members which caused them immense mental cruelty and agony. The Bench of Delhi High Court comprising of Justice Vipin Sanghi and Justice Jasmeet Singh dissolved the marriage by decree of divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955. The Bench was of the view that there was no chance of reconciliation between the parties and that the marriage was irretrievably broken down.
To start with, this brief, brilliant, bold and balanced judgment authored by Justice Jasmeet Singh for a Bench of Delhi High Court comprising of Justice Vipin Sanghi and himself sets the ball rolling by first and foremost putting forth in para 1 that, “The present appeal has been filed under Section 19(1) of the Family Courts Act, 1984 read with Section 28 of Hindu Marriage Act, 1955 challenging the judgment and decree dated 14.08.2019 passed by the learned Judge, Family Court, East District, Karkardooma Courts, Delhi in H.M.A. No. 309/2017, whereby the petition seeking divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 filed by the appellant, was dismissed.”
In short, the Bench then states in para 2 that, “Briefly stated the facts are that marriage of the parties was solemnized on 02.05.2008. On 30.06.2009, a son, was born out of the wedlock.”
To put things in perspective, the Bench then envisages in para 3 that, “The case of the appellant is that on 04.01.2010, the respondent unilaterally left their matrimonial home with the child, without informing or seeking the appellant’s consent. On the same day, the appellant along with his brother and mother went to his in-law’s residence at Vaishali, Ghaziabad, with the aim to bring the respondent back. However, she flatly refused to come back to the matrimonial home. Following this, there was a physical altercation between the appellant and his brother on one side, and the respondent’s brothers on the other side. These experiences have led to immense bitterness in the relationship between the parties.”
Furthermore, the Bench then states in para 4 that, “It has further been submitted that for more than one and a half years from 04.01.2010, there was no direct communication or contact between the appellant and the respondent, or even their families. On 06.07.2011, the appellant sent a legal notice, demanding the respondent to rejoin her matrimonial home, and resume their conjugal relationship. However, the respondent neither rejoined her matrimonial home, nor responded to the legal notice. Troubled by this, on 20.08.2011, the appellant filed a petition under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights, in Karkardooma Courts, Delhi.”
Going ahead, the Bench then states in para 5 that, “The appellant further submitted that after receiving the notice of the appellant’s petition seeking restitution of conjugal rights, rather than joining the appellant back, the respondent filed a complaint dated 10.10.2011 before the Crime Against Women (hereinafter referred to as CAW) Cell, Krishna Nagar, Delhi alleging harassment due to dowry demand and domestic violence, amongst others. As per the appellant, the complaint before the CAW Cell was a counterblast to the appellant’s petition under Section 9 of the Hindu Marriage Act, 1955.”
Still ahead, the Bench then mentions in para 6 that, “On 17.04.2012, the respondent filed a reply to the appellant’s petition under Section 9 of the Hindu Marriage Act, 1955, wherein she had sought dismissal of the said petition, and also filed a copy of her CAW Cell complaint as an annexure to reiterate her allegations. On 13.07.2012, the respondent filed a petition under Section 125 of Criminal Procedure Code, 1973 (hereinafter referred to as Cr. P.C.) seeking maintenance from the Appellant.”
As it turned out, the Bench then enunciates in para 7 that, “The appellant submits that after noting the conduct of the respondent i.e. filing complaint before the CAW cell; opposing the appellant’s petition filed under Section 9 of the Hindu Marriage Act, 1955, and; on account of her adamance to not rejoin her matrimonial home, the appellant withdrew his petition filed under Section 9 of the Hindu Marriage Act, 1955 on 13.12.2012. On 27.02.2013, the appellant filed a divorce petition under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 on grounds of cruelty and desertion.”
In para 8, it is then stated that, “On 07.10.2013, the respondent filed her written statement, reiterating her stand in her complaint filed before the CAW Cell. Another application under Section 24 of the Hindu Marriage Act, 1955 was also filed by the respondent on the same day, seeking maintenance from the appellant.”
Truth be told, the Bench then states in para 9 that, “On 09.01.2014, an order of interim maintenance under Section 24 of the Hindu Marriage Act, 1955 was passed, directing the payment of Rs. 21,000/- per month for respondent and her minor son, along with the litigation expenses of Rs. 11,000/-. The said amount was later enhanced to Rs. 30,000 per month, which the appellant continues to regularly pay.”
While narrating further the sequence of events, the Bench then mentions in para 10 that, “The parties led their evidence before the Family Court, and after hearing the arguments on both sides, the Family Court dismissed the Appellant’s petition. Aggrieved thereby, the appellant has preferred the present appeal.”
It must be noted that the Bench then states in para 11 that, “This Court issued notice to the Respondent-wife on 23.09.2019. Further, vide order dated 27.02.2020, this Court, referred the parties to the Delhi High Court Mediation and Conciliation Centre to explore the possibility of reaching a settlement. Thereafter on 22.10.2021, the Court ordered both parties to remain present in Court to explore the possibility of a mediated settlement. On 13.12.2021, the Court noted that the respondent was not present, and presumably she was not interested in a settlement. Accordingly, we listed the appeal for hearing on 05.01.2022.”
Be it also noted, the Bench then stipulates in para 29 that, “A bare perusal of cross examination of the respondent shows that she could not establish any demand of dowry, either prior to the marriage, or at the time of marriage by the appellant. It was only two years after leaving the matrimonial home, did the Respondent file the CAW cell complaint. This itself puts the credibility of the said complaint in doubt. It is, in fact, admitted that the Respondent only filed the CAW Cell complaint after the Section 9 petition was filed, and there were no complaints lodged by the Respondent-wife prior to that. Pertinently, even her parents/ brother never filed any complaints in that respect at any earlier point of time.”
It also deserves to be noticed that the Bench then holds in para 32 that, “We are unable to agree with this view of the Family Court. The approach of the Family Court that it was for the appellant to prove in negative – that he and his family had not subjected the respondent to harassment or cruelty the dowry, is palpably wrong and against all cannons of justice and fairplay. Unless there is a statutory presumption created in respect of a state of affairs, the initial onus to prove ones case cannot be shifted by requiring the other party to prove the reverse. We may also rely upon the decision of this court in KB v SS (2016 SCC Online Del 3288) which reads:
“46. It is not only when such allegations are made in judicial proceedings that the person – against whom they are made may have valid grievance. The damage to the matrimonial bond had been done by the appellant when she made such serious and scandalous allegations against the respondent in her complaint to the CAW cell vide Ex. RW-1/5.
47. It is a settled position that leveling of unsubstantiated allegations in the pleadings or otherwise amount to mental cruelty under Section 13(1)(ia) of the Act (See AS v. SNS 226 (2016) DLT 565 Manisha Sandeep Gade v. Sandeep Vinayak Gade AIR 2005 Bom. 180). Vimla Balani (supra) Mahendra Kumar Sharma (supra) and Jayanta Nandi (supra).
48. Thus the writing of the complaint to the CAW cell (Ex. RW1/5) tantamounted to causing grave mental agony and cruelty to the respondent as it contained serious and baseless allegations against the respondent and his family members of demanding dowry from the appellant and her parents and also of the respondent maintaining illicit relations with other women. The said allegations were nothing short of character assassination of the respondent. The making of such serious allegations must have caused grave mental agony to the respondent and his claim that the matrimonial bond has been destroyed on that account cannot be negated. The respondent has a reasonable ground to believe that living with the appellant may again lead to serious injury to his name and reputation and to that of his family. The finding of the learned ADJ on this aspect is therefore affirmed.
49. Turning to the aspect of desertion the appellant did not deny the fact that the parties remained separated from one another for a period of two years from March 2004 to March 2006. She sought to put the blame for the same at the door of the respondent by alleging that she had to leave the matrimonial home on account of cruelty caused by the respondent.
50. However other than her averments in the pleadings and her own examination in chief there is not a shred of evidence to suggest that the respondent had treated her with cruelty. In fact the respondent in his cross examination had specifically denied the suggestions alleging harassment and cruelty by him upon the appellant.
52. The parties have lived apart for approximately 10 years. Various police complaints/CAW Cell complaints were filed by the appellant and the family members of the respondent. There appears to be no possibility of the revival of the matrimonial relationship between the parties and the relationship between the parties has irretrievably broken down. The marriage is as good as dead. The irretrievable breakdown is the result of the conduct of the appellant and the respondent/husband is entitled to a decree of divorce under Sections 13(1)(ia) and (ib) of the Act.””
While citing the relevant case law, the Bench then states in para 33 that, “It has been held by the Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3 SCC 786 :
“14. It cannot be in doubt that in an appropriate case the unsubstantiated allegation of dowry demand or such other allegation has been made and the husband and his family members are exposed to criminal litigation and ultimately if it is found that such allegation is unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege that mental cruelty has been inflicted on him, certainly, in such circumstance, if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original court to allege mental cruelty it could well be appreciated for the purpose of dissolving the marriage on that ground….””
While citing yet another relevant case law, the Bench then states in para 34 that, “The Supreme Court in the case of K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226 has held that making unfounded allegations against the spouse or his relatives in the pleadings, filing of complaints etc. which may have adverse impact on the job of the spouse in the facts of a case, amounts to causing mental cruelty to the other spouse. The same view was expressed by the Supreme Court in the case of K. Srinivas v. K. Suneetha (2014) 16 SCC 34.”
It is worth noting that the Bench then notes in para 35 that, “The allegations made in the CAW Cell, reiterated in the reply to the section 9 petition are of a serious nature, and in contradiction to the cross-examination and evidence by way of affidavit of the Respondent-wife. These allegations were as follows:-
“3. That my parents financial status is not much sound yet the gifts that were given as much of good value as possible but my in-laws side seemed to be all cheap and often I had to listen from my husband, mother-in-law, and brother-in-law that “the sloppy girl from the slum colony should tell her parents that we are respectable people that such inferior goods are not even given to beggars here and come with branded gifts. Does anyone marry like this; bring at least 10 lakh rupees or die somewhere otherwise no need to come to this house.
4. That after the marriage of my first month when I have been harassing and beaten up by the my in- laws, I had objected to use abusing language and indecent words against my parents and my brothers then my brother-in -law said to me that if you have problem then tell your family come with 10 lakh rupees we will treat you like princes otherwise it will remain as it is. If you want to stay here then stay here otherwise go somewhere else and darken your face, if you said something upside down to the family members or even mention these things to any one we will burn you alive. I was too scared about the threat of my life that I have never told or mention these things or incidents to my parents. I was quietly tolerated their oppression and torture to maintain peace in my matrimonial home.
7. That I and my child became ill after coming to my mother’s home, entire expenses of the treatment were borne by my father and my brothers. My in-laws even did not turn up to ask about us. My in-laws remained adamant about demanding 10 lakhs rupees even after my parents request and brothers apologized for holding their feet. After much persuasion, I came back to my in-laws, but all went vain and they continue to misbehave, using abusing language and beaten up me and also disrespecting my parents. I am not given enough food nor is any attention given to raising my child.
9. That on 4.01.2010 my husband, brother -in-law and mother in law came along with other 3-4 persons at my parents home and during the talking suddenly my mother- in- law and brother-in-law started abusing me, my husband and brother-in-law have fought with my parents , during this incident my father got some injuries by my in-laws.
11. That by this complaint against my husband Sh. Ritesh Babbar brother-in-law Sh. Manish Babbar S/o Late Sunil Babbar and Mother-in-law Smt. Chandra Mani w/o Late. Sunil Babbar illegally demanding 10 lakh rupees in the name of dowry and not meeting the demand abused me, beaten up, and threat to kill to me, complainant facing physical and mental torture by this. This complaint being given with the intention of taking legal action against the culprits.””
Quite damningly, the Bench then held in para 36 that, “The allegations have not been established and amount to a clear and categorical character assassination of the appellant as well as his family members. The Family Court has ignored the said aspect of the matter. Moreover, the appellant had to make 30-40 visits to the police station in connection with the said complaint. A police station is not the best of places for anyone to visit. It must have caused mental harassment and trauma each time he was required to visit the police station, with the Damocles Sword hanging over his head, and he not knowing when a case would be registered against him and he would be arrested. So far as the respondent is concerned, she had done everything to get the appellant and his family entrapped in the criminal case. That was also her prayer in her complaint.”
Truth be told, the Bench then holds in para 37 that, “As regard to the ground of desertion is concerned, the Family Court has held:
“38. Record would show that the parties separated on 04.01.2010. The petitioner has not given any specific reason or circumstance in which the respondent went to her parental house. The respondent has alleged that she was driven out of her matrimonial house on that day with the child in her wearing clothes and all her belongings remained in the house of the petitioner. Separation by itself would not constitute desertion. Separation would transform into desertion only from the date of formation of animus deserendi by the respondent. It cannot be assumed that on the day, the respondent left her home, she did so with an intention to bring cohabitation permanently to an end.
40. In view of above facts and circumstances, I am of the opinion that the petitioner has failed to establish that the separation between the parties was accompanied by animus deserendi on the part of the respondent for two years prior to the date of filing of the present petition. Thus, the statutory condition for applicability of section 13(l)(ib) is not satisfied.””
It cannot be lost on us that the Bench then notes in para 38 that, “On the said aspect of desertion under section 13(1)(ib) of the Hindu Marriage Act, we note that the while there is a debate as to whether the Respondent-wife left her on her own volition, or whether she was thrown out of the matrimonial home, it is an admitted fact that she did not return to the matrimonial home despite the appellant going to bring her back with his brother and mother, despite the notice requisitioning the respondent to rejoin the appellant, and; despite the petition under section 9 being filed by the appellant.”
It also cannot be glossed over that the Bench then notes in para 39 that, “The respondent could not justify not returning to the matrimonial home, and her refusal to cohabitate with the Appellant, to us, is sufficient to establish desertion by her.”
As a corollary, the Bench then holds in para 40 that, “In this view of the matter, we are of the view that the appellant has been able to make out a case of being subjected to cruelty and desertion at the hands of the respondent. We are unable to agree with the findings of the Family Court. That the appellant is entitled to succeed on both the grounds i.e. Sections 13(1)(ia) and 13(1)(ib). The facts and circumstances that lead us to the following conclusion are:-
i. The respondent-wife filed an unsubstantiated criminal complaint against the Appellant and his family members which caused them immense mental cruelty and agony.
ii. The Respondent-wife made several contradictory and unsubstantiated allegations in her written statements, complaint before the CAW Cell, and her evidence by way of affidavit. The Respondent failed to prove and establish the averments she made, which itself amounts to mental cruelty. In respect of her testimony, she stood discredited in the light of the said contradictions.
iii. As far as the relations between the parties are concerned, they are sufficiently beyond repair. Both the Appellant and the Respondent allege acts of cruelty against each other.”
Most notably, the Bench then holds in para 45 that, “In the facts of the present case:-
i. The parties have lived separately for 12 years now.
ii. There is no chance of reconciliation between the parties and the marriage has irretrievably broken down.
iii. No useful purpose would be served by maintaining this matrimonial bond. The insistence to continue this relationship would only be inflicting further cruelty upon both the parties.
iv. The marital discord between the parties at present is such that there is a complete loss of faith, trust, understanding and love between the parties. The conduct of the Respondent has been such as to cause great mental anguish to the Appellant, and the parties cannot be reasonably expected to live with each other anymore.”
Finally, the Bench then concludes by holding in para 46 that, “For the above reasons, the appeal is accordingly allowed, the marriage between the appellant and the respondent is dissolved by decree of divorce under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955. Parties to bear their own costs.”
In conclusion, the Delhi High Court has not wavered even slightly in squarely blaming the wife for filing unsubstantiated criminal complaint against husband and his family causing immense mental cruelty. So it was but natural that Delhi High Court was left with no option but to allow the appeal of the husband and dissolving the marriage by grant of decree of divorce. Rightly so!
Sanjeev Sirohi, Advocate
