Justice not delayed for the powerful

The Supreme Court through a series of observations recently admitted that Indian judiciary was ignoring the common man while giving priority to rich, powerful and influential people in hearing cases and some serious introspection was called for in this regard.

Mail Today – 15 hours ago 

http://in.news.yahoo.com/justice-not-delayed-for-the-powerful-120651663.html

By Harish V. Nair

NEW DELHI: SC admits common man is being ignored as high-profile cases get priority in courts. SPEEDY trial in cases involving rich and powerful accused has perturbed not only the common people but also the apex judicial body of the country.

The Supreme Court through a series of observations recently admitted that Indian judiciary was ignoring the common man while giving priority to rich, powerful and influential people in hearing cases and some serious introspection was called for in this regard.

There are 65,000 cases pending in the Supreme Court, total of 42 lakh cases in high courts and a staggering 2.9 crore in trial courts.

"Look at the tragedy in our country. Decision was rendered in January this year by the trial court and appeal has been heard and arguments completed. Here, appeals filed in the year 2005 against death penalty are not heard by us. Sometimes, I wonder at my system. Here is an appeal of the year 2013 which gets a quick hearing. In how many cases are we doing so? That's why poor man feels that look the system cares only for known persons and the unknown persons (common man) gets ignored," a bench of justices H. L. Dattu and SJ Mukhopadhaya said on September 12 while dismissing the plea of former Haryana chief minister Om Prakash Chautala.

Chautala, who is serving a ten- year jail term in the teacher recruitment scam, had sought extension of his interim bail.

Another bench of Justice B. S. Chauhan and Justice S. A. Bobde while dismissing the anticipatory bail plea of IPS officer P. P. Pandey, accused in Ishrat Jahan fake encounter case, on August 12 said: "We are sorry to say that the court's time is being used by senior advocates and big criminals. We can say on oath that only 5 per cent of the time is being used for common citizens, whose appeals are waiting for 20 or 30 years. This court has become a safe haven for big criminals. You come here for the sixth or eighth time for anticipatory bail and we should hear as if we were a trial court."

THE ISSUE was first brought to the fore in December 2011 by a Delhi High Court judge S. N. Dhingra who said "…. criminal justice system needs overhauling so that the constitutional mandate of equality before law is made meaningful and it should not be the case that higher courts are kept occupied by the person with money or power, as is the case today".

Justice Dhingra issued an order that in all such cases where appellants are in jail and sentence is not suspended, courts should fix a time limit for disposing of such appeals.

Lawyer Manish Khanna, who has been fighting for speedy trial for the poor, said: " It is a well know fact that hearing pattern in most courts change when petitions of the rich and powerful come up. Senior advocates who appear for them get special attention."

Khanna, through an RTI query sought to know recently if the high court, after justice Dhingra's order put in place any policy on giving speedy hearing to persons in jail and the reply he got was "issue under submission to the authorities".

The issue was first brought to the fore in December 2011 by a Delhi High Court judge S. N. Dhingra.

Reproduced From Mail Today. Copyright 2013. MTNPL. All rights reserved.

Delhi HC: Parents ruining Marriages by constat interference. 18.02.2011, Justice Kailash Gambhir, Suman Khanna Vs Muneesh Khanna.

Delhi High Court: Parents ruining Marriages by constat interference. 18.02.2011, Justice Kailash Gambhir, Suman Khanna Vs Muneesh Khanna.



IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 01.12.2010
Judgment delivered on: 18.02.2011
FAO 439/2003 & Cross Objections No.1788/2003
SMT.SUMAN KHANNA ……Appellant
Through: Mr. R.P. Shukla with Mr.
Ganjanan Kumar, Advocates.
Vs.
SHRI MUNEESH KHANNA ……Respondent
Through: Mr. K.R. Chawla, Advocate.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J.
*
1. By this appeal filed under Section 28 of the Hindu
Marriage Act, 1955 the appellant seeks to set aside the
judgment and decree dated 3rd June, 2003 passed by the
learned Addl. District Judge, Delhi, whereby the petition filed
by the respondent under Section 13(1) (ia) and (ib) of the
Hindu Marriage Act was allowed and the marriage between
the parties was dissolved on the ground of cruelty under
Section 13(1) (ia) of the said Act.

2. Brief facts of the case relevant for deciding the
present appeal are that the parties got married on 13.4.90 at
Delhi according to Hindu rites and ceremonies. Problems
started from the very inception of the marriage from the time
of the honeymoon and continued till the time they stayed
together. The main allegation of the respondent was that the
appellant was under the influence of her parents and would
leave the matrimonial home time and again. Disturbed by the
cruel conduct of the appellant, the respondent filed a petition
for divorce on the ground of cruelty and desertion which vide
judgment and decree dated 3. 6.03 was granted on the
ground of cruelty. Feeling aggrieved with the same, the
appellant has preferred the present appeal.

3. Mr.R.P.Shukla, learned counsel appearing for the
appellant contended that the Exhibit PW- 1/1, on which
reliance has been placed by the learned trial court, was
forcefully got signed from the appellant. The contention of the
counsel was that the respondent husband clearly told the
appellant that if she wanted to save her marriage then she
had to sign the said agreement. Counsel thus submitted that
the said agreement was not signed by the appellant out of her
own will and volition, but only with a view to save her
matrimony. So far the allegation of suicide against the
appellant is concerned, counsel contended that the
respondent in his own cross-examination has admitted the
fact that the appellant could not have inserted her finger in
the socket due to the narrow width of the hole. Counsel
further submitted that the respondent had also admitted in
his cross-examination that there were no power plugs in any
portion of the tenanted home where the parties were living
together. Counsel also submitted that the respondent also
failed to prove the fact that the appellant made any attempt to
commit suicide by laying herself in front of the DTC bus. The
contention of the counsel was that the appellant being a
working woman has been travelling quite often in the DTC
buses and, therefore, she was not expected to take such a
step. Counsel also submitted that so far the affidavit Exhibit
PW- 1/2 is concerned, firstly the same was not proved in
accordance with the law and secondly nobody would execute
such an affidavit unless the same was to be filed in a court of
law. Counsel for the appellant further submitted that the
allegation of the respondent that he was not served with
dinner when he visited his in laws in the month of May, 1990
is highly improbable. The contention of counsel for the
appellant was that it would be inconceivable that once the
husband was invited over dinner by the in-laws then he would
not be served with dinner while the other family members
would take dinner. Counsel thus stated that the learned Trial
Court has wrongly placed much reliance on this incident,
which in the given circumstances was highly improbable.

4. Counsel for the appellant further submitted that
even the incident of 9.5.90 lacks any credibility as the
respondent himself has admitted the fact that it was a
working day when he extended invitation to his friend Mr.
Kaushal Kumar Malik for lunch. The contention of counsel
was that the appellant was also working in the same office
and, therefore, on a working day it was highly improbable
that the husband would send his wife to the residence to
prepare lunch for all the three persons. Counsel also
submitted that the said witness Mr. Kaushal Kumar Malik was
not produced in evidence by the respondent and for
withholding the said material witness the learned Trial Court
ought to have drawn an adverse inference against the
respondent. Counsel also submitted that the respondent in
his cross examination admitted the fact that he reached back
home at 4.00 P.M. on 9.5.1990 alongwith his friend which
cannot be a usual time for taking lunch as the respondent in
his cross examination admitted the fact that usually he took
lunch at 2 p.m or 2.30 p.m. Counsel also submitted that no
quarrel or any incident had taken place on 9.5.1990. PW—2
Smt. Nirmala Tiwari in her evidence clearly admitted the fact
that no fight took place between the parties on 9.5.1990.
Counsel contended that no evidence was led by the
respondent to prove the fact that the appellant had cut short
the honeymoon trip at the instance of her parents and even in
the absence of any proof the learned trial court has heavily
relied upon the said allegation. Counsel submitted that the
respondent also did not prove the fact that after cutting short
the said honeymoon trip he had joined the office before the
leave period expired. Counsel further submitted that the
parties would not have stayed at Ambala after their return
from honeymoon had there been any curtailment in the
honeymoon period at the instance of the appellant. Counsel
also submitted that it is not the case of the respondent that
the appellant had immediately gone to the house of her
parents after returning from honeymoon. Counsel submitted
that the respondent failed to prove on record that any
complaint was lodged by the appellant with the RBI Women
Forum as no evidence was led by the respondent to prove
such a fact. Counsel further submitted that a false allegation
was leveled by the respondent that he was not being allowed
to visit his parents’ house at Ambala and the falsity of this
allegation is apparent from the fact that even the delivery of
the first child had taken place at Ambala while better medical
facilities were available in Delhi. Counsel further submitted
that the learned trial court has also given a wrong finding
with regard to Ex. PW1/3 dated 14.8.90, as the said document
was neither signed by the appellant nor by her parents. PW 3
Mr. B.L Chawla has also deposed in his evidence that the said
document was not signed by the appellant. In support of his
arguments, counsel for the appellant placed reliance on the
judgment of the Hon’ble Supreme Court in the case of Neelam
Kumar Vs. Dayarani JT 2010 (6) SC 441.

5. Refuting the arguments of counsel for the
appellant, Mr. Chawla counsel for the respondent submitted
that the appellant in her cross examination as RW—1 has duly
admitted not only her own signatures but the signatures of
her mother and brother on Ex. PW1/1 and same is the position
so far her affidavit Ex. PW1/2 is concerned. The contention of
the counsel was that appellant is a well educated lady holding
M.Com degree and therefore she had signed the said
document after having fully gone through the contents of the
same and it was never the case of the appellant that she had
signed the said document to save her marriage.

6. Counsel further submitted that differences
between the parties had arisen right at the beginning of their
married life and the appellant had left the matrimonial house
on 5.6.90. The contention of the counsel was that the said
agreement dated 14.6.90 was signed by the appellant after
fully realizing her faults and the respondent wanted to
ensure that she would not repeat any such acts again.
Counsel thus submitted that a detailed affidavit was signed by
the appellant which was duly witnessed by the parents of the
appellant and father of the respondent and other witnesses.
Counsel further submitted that the appellant in her crossexamination
also admitted the fact that she was not happy
during her stay at Shimla. Counsel also submitted that the
appellant did not cross-examine PW—2, Smt. Nirmala Tiwari
on her deposition with regard to the attempts made by the
appellant to commit suicide, first time by making an attempt
to insert her finger in the socket and second time by
threatening to come under the DTC bus. PW—2 further
confirmed the visit of Mr. Kaushal Malik on 9.5.90 and she
was not cross-examined by the appellant so as to refute the
visit of Mr. Kaushal Malik on that day.

7. Counsel for the respondent further argued that the
respondent had duly proved on record the incident which had
taken place on 05.06.1990 when the respondent was
humiliated by the father of the appellant in the presence of
the local people. Drawing attention of this Court to the crossexamination
of PW-1, counsel submitted that the visit of the
appellant’s parents to the matrimonial house at Multan Nagar
on 05.06.1990 has been duly admitted by the appellant
herself, as suggestion was given by the appellant to the
respondent confirming the visit of the appellant’s parents on
the said date. Counsel also stated that Ex.PW-1/1 and Ex.PW-
1/2 were executed by the appellant keeping in view the entire
background of the facts of the preceding dates. Counsel also
stated that the visit of Mr. Kaushal Kumar Malik has been
duly admitted by the appellant herself, although she has taken
a stand that he was invited for tea and there was no provision
in the house to offer lunch to him. Counsel also stated that
visit of Mr.Kaushal Kumar Malik has also been confirmed by
PW-2 Smt.Nirmala Tiwari in her evidence. In support of his
arguments, counsel for the respondent placed reliance on the
following judgments:

(i) Naveen Kohli vs. Neelu Kohli I (2006) DMC 489 SC

(ii) Sujata Uday Patil vs. Uday Patil I (2007) DMC 6 SC

(iii) Pranati Chatterjee vs. Goutam Chatterjee I (2007) DMC 89
DB –Calcutta High Court

(iv) Rita Das Biswas vs. Trilokesh Das Biswas I (2007) DMC 96
DB –Gauhati High Court

(v) Sanghamitra Ghosh vs. Kajal Kumar Ghosh I (2007) DMC
105 SC

(vi) M/s Chunni Lal vs. Hartford Fire Insurance AIR 1958 Punjab
440

(vii) Traders Syndicate vs. Union of India AIR 1983 Calcutta 337

(viii) Mahant Mela Ram vs. SGPC AIR 1992 P & H 252

8. I have heard learned counsel for the parties at considerable length and gone through the records.

9. The respondent had filed a petition under Section
13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 and vide
judgment and decree dated 03.06.2003, the learned trial
court allowed the petition of the respondent on the ground of
cruelty under Section 13 (1) (ia) of the said Act, while on the
ground of desertion, the petition was dismissed. Feeling
aggrieved with the said judgment and decree, the appellantwife
has preferred the present appeal, while a cross-appeal
was also filed by the respondent challenging the finding of the
learned trial court dismissing the petition of the respondent
under Section 13 (1) (ib) of the said Act on the ground of
desertion.

10. During the course of arguments, learned counsel
for the respondent did not press the cross-appeal filed by the
respondent and, therefore, arguments were heard by this
Court confining to the challenge made by the appellant to the
said judgment and decree dated 03.06.2003.

11. The prime incidents of cruelty mainly relied upon
by the learned trial court in the impugned judgment and
decree dated 03.06.2003 can be enumerated as under:-

(i) As per the respondent, the agreement and affidavit
dated 14.6.90 duly proved on record by the respondent
as Ex.PW-1/1 and Ex. PW-1/2 respectively, clearly
reflect that there was a constant interference of the
parents of the appellant in the matrimony as the
appellant was under the constant influence of her
parents and she used to leave the matrimonial house
time and again at the instance of her parents.

(ii) The appellant made an attempt to commit suicide by
inserting her finger in the socket in the first week of
August, 1990 and once she also gave a threat to commit
suicide by laying before the DTC bus.

(iii) The document Ex.PW-1/3 was proved on record by
PW-3 Shri B.L.Chawla to prove the fact that the
appellant had left the company of the respondent at the
instance of her parents. By this document also, the
respondent proved the continuous interference of the
parents of the appellant in their matrimonial life.

(iv) Humiliation of the respondent when a colleague of the
respondent Mr.Kaushal Malik was not served with
lunch on 09.05.1990, although he was invited for lunch
and the appellant was sent back home from her office to
prepare lunch for them.

(v) On 5.6.90, both the parents of the appellant came to the
matrimonial home at Multan Nagar and the father of
the appellant was drunk and created a scene outside
the house by alleging that the respondent had taken
dowry in the marriage and that the appellant is not
being given food.

(vi) Physical assault of the respondent by the father of the
appellant at appellant’s parental house in the presence
of the appellant after the celebration of their first
marriage anniversary at Ambala on 13.4.91.

(vii) Manhandling of the respondent by the brother of
the appellant on 03.07.1991, the incident which
happened in the presence of the land lady Mrs.Nirmala
Tiwari and a tenant Mrs.Jain.

12. The marriage between the parties was solemnized
according to Hindu rites and ceremonies on 13.04.1990 and
the relationship between the parties soured right from the
very beginning. As per the respondent, their honeymoon trip
was curtailed due to the intervention of the parents of the
appellant. Execution of the agreement and the affidavit just
within a period of about two months of the marriage no doubt
is an unusual step, but the precise question which would arise
is that under what circumstances the need arose for the
parties to execute the agreement Ex.PW-1/1 and for the
respondent to sign the affidavit Ex.PW-1/2.

13. Learned counsel for the appellant vehemently
argued that the said affidavit and the agreement were signed
by the appellant just with a view to save her marriage, as
otherwise she would not have agreed to sign the said
documents. Undoubtedly, both the parties are well educated
and were employed in the same Bank and it cannot be easily
believed that the appellant would have signed such a detailed
agreement duly supported by her affidavit without there
being any background of repeated visits of the appellant to
her parental home and constant interference of the parents of
the appellant in her matrimonial life. So far the averments of
the agreement and affidavit highlighting the fact that there
was no exchange of dowry articles and only a few articles
were presented in the marriage and that the marriage was a
simple affair , this Court does not find anything wrong in the
same as due to stringent criminal provisions, the parents and
the family members of the husband often become the easy
targets and victims of humiliation and embarrassment visiting
the Crime Against Women Cell, Police Stations and the Courts
and sometimes to the extent of suffering imprisonment. It was
probably to save such a situation, that the aforesaid
assertions relating to dowry articles must have been inserted
in the said agreement and affidavit. Through the said
affidavit, the parents of the appellant also gave some sort of
assurance to the respondent that they will not interfere in any
manner whatsoever in the matrimonial lives of the parties.
Such a written statement given by the parents of the
appellant does give strength to the plea of the respondent
that there was a constant interference from the side of the
parents and family members of the appellant in their
matrimonial life. The said agreement and the affidavit have
not been disputed by the appellant. The agreement is also
signed by the appellant, her parents as well as her brother
and from the side of the respondent, the respondent himself,
his father Mr. Kedar Nath Khanna, Mr O.P Tiwari and Mr. K.K
Malik. The plea taken by the appellant that the said affidavit
and the agreement were signed by her under threat is not at
all convincing as the said affidavit and the agreement were
not only signed by the appellant herself but by her parents
and brother as well. The appellant has also taken a plea in her
written statement that the respondent had procured her
signatures on blank papers and blank stamp papers and even
she had signed the suicide note with a view to save her
marriage, but no weightage can be given to such
unsubstantiated pleas as the appellant has not produced her
parents and her brother in the witness box to prove her
defence that the said documents were executed by all of them
under the alleged threat of the respondent. There is thus no
reason to disbelieve the said documents duly proved on
record as Ex.PW-1/1 and PW-1/2 which give a clear picture
about the continuous interference of the parents in the
matrimonial life of the appellant and her husband.

14. The second incident, on which reliance was placed by
the learned trial court to grant decree of divorce on the
ground of cruelty, was that the appellant had once attempted
to commit suicide by inserting her finger in the socket and
second time when she had given a threat to lay down before
the DTC bus. This testimony of the respondent-husband was
duly corroborated by PW-2 Smt.Nirmala Tiwari, the land lady
of the house, who is an independent witness. The learned trial
court has rightly given due credence to the testimony of PW-2
Smt.Nirmala Tiwari, who in her cross-examination, deposed
that in her presence the appellant gave a threat of committing
suicide by coming in front of DTC bus. PW-2 also supported
the testimony of the respondent-husband with regard to the
attempt made by the appellant in the year 1990 to commit
suicide by putting her finger in the socket. The argument of
counsel for the appellant that the width of the socket was too
narrow for the insertion of the finger lacks force as it is not
the case of the respondent that literally she had put her finger
inside the socket and had it been so then certainly the
appellant would have received an electric shock, which is not
the case of the respondent in the divorce petition.

15. Considering the next incident with regard to the
document Ex. PW 1/3, the argument of counsel for the
appellant was that Ex.PW-1/3 dated 14.08.1990 was neither
signed by the appellant nor by her parents and, therefore, no
weightage could have been given by the learned trial court to
such a document. This argument of learned counsel for the
appellant is devoid of any force as Mr.B.L.Chawla entered the
witness box and proved the said document as Ex.PW-1/3. The
appellant has not disputed the fact that she left the
matrimonial house on 14.08.1990 when the said writing was
executed by Mr.B.L.Chawla. Simply because the said
document was not signed by the appellant and her parents
would not imply that no meeting was arranged of the people
of the locality on 14.08.1990 or that the appellant did not take
the decision to leave the matrimonial home on 14.08.90.

16. Coming to the next incident of 9.5.1990 when a
friend of the respondent husband was invited for lunch at
their house, the argument of the counsel for the appellant was
that the respondent did not suffer any humiliation, as the
respondent could not have invited his friend for lunch on a
working day. The contention of counsel for the appellant was
that the name of Mr.Kaushal Kumar Malik was duly enlisted
in the list of witnesses of the respondent, but still he was not
produced in the witness box to depose and therefore the
learned trial court should have drawn an adverse inference
against the respondent. This argument of counsel for the
appellant is also devoid of any merit. No doubt Mr. Kaushal
Kumar Malik would have been the best witness to prove the
alleged humiliation inflicted by the appellant on the
respondent on that day when he was invited for lunch, but
considering the fact that PW2 Smt. Nirmala Tiwari, who is the
landlady of the respondent and is residing in the same very
property in her deposition confirmed the visit of the said
friend Mr. Kaushal Kumar Malik on 9.5.1990 and also the fact
that the appellant in her deposition also admitted the visit of
Mr. Malik on the same day, therefore, withholding of the said
evidence of Mr. Kaushal Kumar Malik will not prove fatal to
the case of the respondent. The appellant in her examinationin-
chief has admitted the fact that she had served the said
friend with tea and biscuits and on that the respondent
started quarrelling with her in the presence of the said friend
on the ground that she had not prepared food for him. The
explanation given by the appellant for not preparing the food
in her examination-in-chief is that there was no provision in
the house and secondly because it was not the time for
dinner. This explanation given by the appellant cannot hold
any water. To say that there was no provision in the house for
preparing lunch and the time when the said friend of the
respondent visited the house was not suitable for dinner,
cannot be accepted as once the husband and wife are both
earning and are residing together the kitchen of the house is
expected to be properly equipped with necessary grocery and
eatable items. So far question of timing for lunch is
concerned, the same can always vary and lunch at 4 p.m in
metropolitan cities like Delhi is not that unusual.

17. So far the incident of 05.06.1990 when the
respondent was alleged to have been humiliated by the father
of the appellant in the presence of the local people is
concerned; it was proved on record by the respondent that
the parents of the appellant had visited the matrimonial house
at Multan Nagar on 05.06.1990. The affidavit and the
agreement which were executed by the appellant and her
parents on 14.06.1990 also clearly suggest that the said
incident of 05.06.1990 was a pre-cursor to the execution of
the said documents. The testimony of the respondent about
the said incident of 05.06.1990 remained unrebutted as
nothing contrary to the same could be elicited by the
appellant from the respondent during his cross-examination.

19. Without going into the other allegations of cruelty
leveled by the respondent and the minor contradictions in the
cross-examination of the evidence of the respondent and the
two witnesses adduced by him, there is no room to disbelieve
the case of the respondent duly proved by him with the help
of the said two witnesses PW 2 and PW3. I also do not find
any infirmity in the finding of the learned Trial Court taking a
view that the agreement and the affidavit proved on record by
the respondent as Exhibit PW 1/1, PW 1/2 explicitly show that
there was a regular interference from the side of the parents
of the appellant and she used to leave the matrimonial home
at their provocation and instigation and due to that there
arose a need to execute the said documents.

20. Now the question that arises before the court is
that whether the above said acts proved by the respondent
amount to ―cruelty‖ as envisaged under section 13(1) (ia) of
the Hindu Marriage Act, 1955 for dissolution of marriage.
Cruelty has not been defined in the Act and rightly so as it is
not possible to put this concept in a strait jacket formula.
Cruelty can be physical or mental, intentional or
unintentional. The present is a case of mental cruelty where
the respondent husband has alleged that the behaviour of the
appellant caused him mental pain, suffering and humiliation.
But it cannot be lost sight of the fact that the normal wear
and tear of married life cannot be stretched too far to be
regarded as cruelty for the purposes of this section. The
conduct complained of should be grave and weighty so as to
satisfy the conscience of the court that the relationship
between the parties has deteriorated to such an extent that it
cannot be reasonably expected by them to live together
without mental pain, agony and distress. The Hon’ble Apex
Court in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4
SCC 511 after analyzing all the case laws of India and other
countries gave a non exhaustive list of acts that may amount
to mental cruelty. It was held that:

“72. On proper analysis and scrutiny of the judgments of this
Court and other Courts, we have come to the definite
conclusion that there cannot be any comprehensive definition of
the concept of 'mental cruelty' within which all kinds of cases of
mental cruelty can be covered. No court in our considered view
should even attempt to give a comprehensive definition of
mental cruelty.
……

74. No uniform standard can ever be laid down for guidance,
yet we deem it appropriate to enumerate some instances of
human behavior which may be relevant in dealing with the
cases of 'mental cruelty'. The instances indicated in the
succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make
possible for the parties to live with each other could come
within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of
the parties, it becomes abundantly clear that situation is such
that the wronged party cannot reasonably be asked to put up
with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it makes
the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused by
the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of
the spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse
actually affecting physical and mental health of the other
spouse. The treatment complained of and the resultant danger
or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness and
dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of
the married life which happens in day to day life would not be
adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to
cruelty. The ill-conduct must be persistent for a fairly lengthy
period, where the relationship has deteriorated to an extent
that because of the acts and behavior of a spouse, the wronged
party finds it extremely difficult to live with the other party any
longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of
sterilization without medical reasons and without the consent or
knowledge of his wife and similarly if the wife undergoes
vasectomy or abortion without medical reason or without the
consent or knowledge of her husband, such an act of the
spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity
or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after
marriage not to have child from the marriage may amount to
cruelty.

(xiv) Where there has been a long period of continuous
separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in
such cases, does not serve the sanctity of marriage; on the
contrary, it shows scant regard for the feelings and emotions of
the parties. In such like situations, it may lead to mental
cruelty.”

21. Cruelty thus depends on case to case basis and
what may be cruelty in one case may not be cruelty in the
other. Sometimes a taunt or an insult may be more painful
than a physical assault. The factors that may be considered
are the social status of the parties, the economic background,
education and upbringing, for coming to the conclusion
whether the conduct complained of would touch the pitch of
severity which would make it impossible for the parties to live
with each other. The incidents alleged in the present case are
of a nature where apart from the actual physical assault by
the brother and father of the appellant on different occasions,
evidently the appellant has herself not fulfilled her marital
obligations. The parties got married on 13.4.90, and on the
honeymoon itself there arose differences between them. The
appellant left the house for the first time within two months of
her marriage which is highly unusual for a newly married lady
unless something catastrophic takes place. The petition for
divorce was filed by the respondent on 15.1.92, just within a
period of almost two years from the date of the marriage
demonstrating that the desiderata of matrimony,
understanding and tolerance were abysmally amiss between
the parties. It was also proved on record by the respondent
that the appellant had threatened to commit suicide on two
occasions. It was held by the Apex Court in the case of N.G
Dastane vs S.Dastane AIR 1975 SC 1534 that the threat
by the spouse to put an end to her own life would amount to
cruelty. It was further reiterated by this court in the case of
Smt.Savitri Balchandani vs. Mulchand Balchandani AIR
1987 Delhi 52 and now recently by the Bombay High Court
in 2009 in the case of Mrs. Sanjivani Vs. Mr. Bharat that
the threat by the wife to commit suicide would come in the
ambit of mental cruelty. The threat of ending her life by the
wife and constant bickering to the extent that the husband
has to invariably make sure that she does not take an extreme
step to commit suicide would undoubtedly create a hostile
atmosphere where the wife would treat the husband as her
enemy and would certainly cause great stress to the husband.
Hence, the persistent piquing conduct of the appellant in the
present case is antithetic to the natural love, affection, trust
and conjugal kindness and has caused to the respondent
mental pain, agony and suffering which amounts to mental
cruelty as envisaged under section 13(1) (ia) of the Act.

22. It is often found that the malaise of the interference of
parents in the married life of their daughters has become a
major cause playing havoc with the matrimonial lives of young
couples. All the parents guide, teach and discipline their
daughters and are concerned about her welfare after
marriage but it is imperative for the parents to draw a line as
the prime concern should be that their daughter is happily
settled in a new atmosphere at the husband’s place but not
with day–to-day monitoring of the affairs taking place at the
matrimonial home of the daughter. Parents should not
become uninvited judges of the problems of their daughter,
becoming an obstacle in the daughter’s married life, to plant
thoughts in her mind and gain control over her and promoting
disharmony in her family life. They are expected to advise,
support and believe in their upbringing maintaining a discreet
silence about the affairs of the matrimonial relationship. The
present case is an unfortunate example where the parents of
the appellant, instead of putting out the fire have fuelled and
fanned it, resulting in the disruption of the sacred bond of
marriage.

23. Based on the above discussion, this Court does not find
any illegality or infirmity in the impugned judgment and
decree passed by the learned Trial Court. The judgment of the
Apex Court relied upon by the learned counsel for the
appellant in the case of Neelam Kumar (supra) will be of no
help to the case of the appellant as the ground of irretrievable
break down of marriage has not been taken into consideration
to uphold the order of the learned Trial Court.

24. In the light of the foregoing, there is no merit in
the present appeal and the same is hereby dismissed.

February 18, 2011 KAILASH GAMBHIR, J
dc/rkr

Supreme Court: Domestic Violence Act does not give a Woman right to eye her Mother-in-Law's Property for Maintenance, 14.03.2008, Justice S.B. SINHA & V.S. SIRPURKAR

Supreme Court: Domestic Violence Act does not give a Woman right to eye her Mother-in-Law's Property for Maintenance, 
14.03.2008, 
Justice S.B. SINHA & V.S. SIRPURKAR

CASE NO.:
Appeal (civil) 2003 of 2008

PETITIONER:
Vimalben Ajitbhai Patel

RESPONDENT:
Vatslabeen Ashokbhai Patel and others


DATE OF JUDGMENT: 14/03/2008

BENCH:
S.B. SINHA & V.S. SIRPURKAR

JUDGMENT:

JUDGMENT
CIVIL APPEAL NO 2003 OF 2008
[Arising out of SLP (Civil) No. 1061 of 2007]
WITH
CRIMINAL APPEAL NO. 502 OF 2008
[Arising out of SLP (Crl.) No. 213 of 2007]

Ajitbhai Revandas Patel and another \005 Appellant
Versus
State of Gujarat and another \005 Respondents

S.B. SINHA, J :

1. Leave granted in both the matters.

2. These two appeals being inter related were taken up together for
hearing and are being disposed of by the common judgment.

3. Vimlaben Ajitbhai Patel (Appellant in Civil Appeal is the mother in
law of Sonalben Rameshchandra Desai - respondent No.3 in Civil Appeal
and respondent No.2 in Criminal Appeal) while she alongwith her husband
are the appellants in the Criminal Appeal. For the purpose of disposal of
these appeals, Vimalben Ajitbhai Patel is being described as Appellant No.1
while her husband Ajitbhai Revandas Patel is being described as Appellant
No.2.

4. Sonalben Rameshchandra Desai was married to Jitendra Ajitbhai Patel
(son of the appellants) on 4th May, 1992. The couple fell apart. In 1993 a
complaint petition was filed by the 3rd respondent against her husband and
the appellants alleging commission of an offence under Sections 406 and
114 of the Indian Penal Code. In the said complaint the 3rd respondent
accepted that her husband had incurred huge losses in the business in United
States. Appellants were granted bail subject to the condition that they would
not leave India without prior permission of the Court. Allegedly on the
premise that Appellant No.2 requires medical treatment, an application for
permission was filed in October 1997 but they left India without obtaining
the same from the Court.

5. An application was filed for cancellation of the bail which was
rejected by the Metropolitan Magistrate as also by the Sessions Judge. The
3rd respondent filed an application before the High Court being Special
Criminal Application NO.1360 of 1997. The said application was allowed
by the High Court by its order dated 18th November, 1997 cancelling the bail
of the appellants. The learned Metropolitan Magistrate was directed to issue Standing Warrant of arrest against the appellants as and when they
returned to India.

6. On an application filed by the 3rd respondent on 24th April, 1998 the
husband of the appellant was declared an absconder and a public
proclamation was issued in terms of Section 82(2) of the Code of Criminal
Procedure attaching her properties if she did not present before the Learned
Magistrate within 30 days from the issuance of the said publication. There is
nothing on record to show that the said order was served on the appellants.
It, however, is not disputed that on their failure to remain present within a
period of 30 days their properties were subjected to order of attachment
under Section 85 of the Code of Criminal Procedure. By an order dated 5th
January, 2004 the District Magistrate was asked by the Leaned Metropolitan
Magistrate to take further action in terms of Section 85 of the Code of
Criminal Procedure by holding a public auction of the said properties. In the
said order it was wrongly sated that the properties belonged to the appellants
and husband of the 3rd respondent, whereas in fact Appellant No.1 alone was
the owner thereof.

7. The 1st Respondent (tenant) and the subsequent auction purchaser
filed an application before the High Court of Gujarat which was marked as
Special Civil Application No.15377 of 2004 against the Mamlatder. A
learned Judge of the High Court by an order dated 5th April, 2005 directed :-
"8. In view of the above, I am inclined to pass the
following order:
8.1) Rule. By interim order it is directed that the
Mamlatdar - Respondent No.1 shall proceed with the
auction of the premises in question on
condition that the auction which may be held
shall be subject to the further condition that -
i) the possession of the premises shall be handed
over by the Mamlatdar to the auction purchaser,
after the conclusion of the proceedings as ordered
hereinafter by the ULC Authority against the
petitioner as well as respondent No.3;
ii) after the auction, it would be open to the
Mamlatdar to notify the said aspect regarding the
transfer effected by auction in the conspicuous
part of the premises and such an intimation may
also be given to the concerned local
authority;
iii) it is further directed that the Mamlatdar -
Respondent No.1 herein shall make reference
to competent Authority under ULC Act to
examine the aspects as to whether the
transaction between the absconder and
Respondent No.3 can be said in breach of the
condition of Scheme under Section 21 of the
ULC Act and he shall also make reference on the
aspects to the competent authority under ULC
Act as to whether the action of the absconder and
subsequently rectification by respondent No.3 to
give the possession of the petitioner as tenant can
be said in breach of the conditions of the Scheme
under Section 21 on the basis of which the
premises came to be allotted to the
absconder \026 original allottee. Such reference shall
be made within a period of two weeks from
today and the Mamlatdar shall request the
concerned authority to decide the reference within a period of three months from the date of receipt
of the reference. In the event it is found by the
competent authority under ULC Act
that the action of absconder of entering into
transaction with respondent No.3 and for handing
over the possession to the petitioner as unlawful,
the Mamlatdar shall be at liberty to take
possession of the premises in question from
the petitioner and thereafter he shall further
be at liberty to hand over the vacant possession
of the premises to the auction purchaser.
iv) It is further directed that until the
aforesaid reference is made and is
decided by the Mamlatdar, the petitioner
shall deposit the amount at the rate of
Rs.1,500/= per month with the Mamlatdar
without prejudice to the proceedings of
the reference and the said amount shall
remain as deposited with the Mamlatdar. In the
event it is found by the competent authority under
ULC Act as an outcome of the reference and the
inquiry that the possession is unlawful of the
petitioner and the transaction is unlawful of the
absconder with respondent No.2, the
Mamlatdar shall be at liberty to refund the
amount. However, in the event it is
found that the possession is lawful and
there is no breach of the condition of
allotment as per the scheme under Section
21 of the ULC Act, the Mamlatdar shall be
at liberty to appropriate the amount in
accordance with law."
v) The aforesaid exercise of holding auction
shall be completed within a period of
five weeks from today.
9. The report of the proceedings and the outcome of
the reference shall also be made by the Mamlatdar to this
Court."

8. However, the appellant and her husband were not made parties
therein. Against the said order, an LPA, which was marked as LPA NO.
1792 of 2005, was filed by the 1st respondent and a Division Bench of the
High Court directed that the amount of rent deposited by him with the
Mamlatder be deposited in the High Court and the 3rd respondent will be
permitted to withdraw the same without prejudice to the rights and
contentions of the parties. The said order was passed, purported to be on the
premise, that the 3rd respondent had placed reliance on an order dated 13th
May, 2005 passed by another Bench of the High Court in First Appeal No.
2626 of 2004 whereby her husband was directed to deposit a sum of
Rs.10,000/- per month towards arrears of maintenance and to continue to
deposit the same.

9. By an order dated 25th January, 2006 the 1st respondent was asked to
deposit a sum of Rs. 4 lakhs (as he expressed his intention to purchase the
said property) apart from a sum of Rs.10,000/- per month which was to be
deposited with the Registrar by him from 10th February, 2006. It was
furthermore directed :-
"6.2 The withdrawal of Rs.10,000/- by respondent No.
2-Sonalben Rameshchandra Desai shall be adjusted
against any amount which may be payable to her by
Jitendra Ajitbhai Patel under any orders in First Appeal
No. 2626 of 2004, in any other matrimonial proceedings
or in any civil or criminal case between her, her husband
and her mother in law."

10. Appellant No.1 made an application to get herself impleaded as a
party but her application was dismissed by the High Court on 11.9.2006.
On or about 21st November, 2006 the High Court directed the first
respondent to pay a sum of Rs.17 lakhs to respondent No.3 in regard to the
auction sale of the property in question. Respondent No.2, Mamlatdar, was
also directed to execute the deed of conveyance and register the same in the
name of the 1st respondent upon full payment.

11. Appellant and her husband returned to India. They filed an
application for cancellation of the said Standing Warrants. By an order
dated 27th June, 2006 the said application was allowed directing :-
"Application is granted and warrant against both the
applicant accused are ordered to be cancelled with a fine
of Rs.3,000/- (Rupees three thousand only) each and with
condition to submit one new surety of Rs.10,000/- (Ten
thousand) and on executing the bond of such like
amount.
CONDITIONS
1. Accused shall not leave India, without prior permission of
the court.
2. Accused shall surrender his passport before the court."

12. Indisputably pursuant to the said order the Passports were deposited
on 28th June, 2006 by them.

13. The 3rd respondent filed an application for setting aside the said order
by filing a Criminal Miscellaneous Application before the Sessions Judge,
Ahmedabad inter alia contending that the Passports had not been deposited
by the accused pursuant to the said order of 27th June, 2006. The learned
Additional Sessions Judge set aside the said order dated 27th June, 2006 and
non-bailable warrants were directed to be issued against the appellants
herein. Aggrieved thereby she filed Criminal Misc. Application No. 14340
of 2006 before the High Court on 13th December, 2006 which by reason by
of the impugned judgment and order dated 27th December, 2006 has been
dismissed.

14. The questions which arise for consideration are :-
(i) Whether in the facts and circumstances of the case, the
property of Appellant No.1 could have been sold in auction?
and
(ii) Whether in a case of this nature, the bail granted to the
appellants should have been directed to be cancelled?

15. Submissions of learned counsel appearing on behalf of the appellants
are :
i) Having regard to the provisions of the Hindu Adoptions and
Maintenance Act, 1956 duty to maintain a wife being on the
husband and not on her mother-in-law, the impugned judgments
are wholly unsustainable;
ii) The property of a person who is no longer absconding, cannot
be subjected to continuous attachment or sale thereof.
iii) Appellants having surrendered their Passports and having been
attending the Court subsequently, the High Court committed a
manifest error in directing cancellation of their bail without
appreciating that the factors relevant for interfering with the
order granting bail and directing cancellation of bail are distinct
and different.

16. Submissions of Mr. Mayur Shah, learned counsel appearing on behalf
of the 3rd respondent, are :-
i) That her husband being the only son of his parents and the
properties having been acquired through ancestral funds and there
being no assertion that the properties are self acquired properties,
she has a right of maintenance out of the Joint Family Property in
terms of Section 18 of the Hindu Adoption and Maintenance Act.
ii) In terms of Section 84 of the Code of Criminal Procedure, keeping
in view the fact that her husband had been directed to pay
maintenance @ Rs.10,000/- per month and which having not been
paid, respondent No.3 could have prayed for realization of the said
amount of maintenance from the sale proceeds of the auction sale.
iii) Even an offer was made that one residential property would be
transferred in her name, apparently goes to show that the properties
are Joint Family Properties. She, having been denied her right of
maintenance, could initiate the proceeding before the Metropolitan
Magistrate as also before the High Court.
iv) The Metropolitan Magistrate committed a serious error in granting
bail upon cancellation of Standing Warrants as appellants have
breached the conditions for grant of bail. They had, although
placed a large number of documents and in particular medical
certificates to show that they were ill, there is nothing on record to
show that they were bed ridden and not permitted to move out.
v) Their near relatives in India would be deemed to have knowledge
of the pendency of the said proceeding and in that view of he
matter neither under the guise of the medical certificates nor on the
ground of age, they deserve any sympathy of the Court.

17. Mr. Nikhil Goel, learned counsel appearing on behalf of the 1st
respondent (Auction Purchaser) would submit :
i) The tenant has a right to reside in the property irrespective of the
order of attachment and the same could not have been interfered
with by Mamlatdar under the orders of the Learned Metropolitan
Magistrate of the District Magistrate.
ii) The 1st respondent had deposited a sum of Rs.10,000/- (Rupees ten
thousand only) each month for a period of ten months which have
been withdrawn by the 3rd respondent. Out of the total auction
amount of Rs.17 lakhs, the 1st respondent had deposited Rs. 4 lakhs
which has been invested in a short term deposit, besides a sum of
Rs.1 lakhs. He has also deposited a further sum of Rs.12 lakhs
which sum have, however, since been refunded. The learned
counsel would contend that in this view of the matter the amount
deposited by him should be directed to be refunded with interest.

18. Sonalben Rameshchandra Desai is an Advocate. She filed a large
number of cases against her husband and in-laws. She initially filed a
Complaint Petition before the Metropolitan Magistrate, Ahmedabad, under
Section 498A of the Indian Penal Code which was registered as Case
No.1662 of 1996. It was transferred to the Court of Chief Judicial
Magistrate, Baroda. It has since been dismissed for default. She initiated
another criminal proceeding against the appellants and their family members
under Sections 323, 452, 427, 504, 506 and 114 of the Indian Penal Code,
the same proceeding has also been dismissed as withdrawn. Another
criminal case was initiated by her against appellant No.2, his son and
another, being Case No.47 of 1996 under Section 406, 420, 468 and 114 of
the Indian Penal Code, which is still pending. Another case, being No.2338
of 2006 was filed by her under Section 500 of the Indian Penal Code.
Another case under Section 406 of the Indian Penal Code being Case
No.2145 of 1993 was filed against the appellants.

19. Before embarking on the questions of law which arise our
consideration, we may notice some statutory provisions.

20. The matter relating to grant of maintenance are now governed by the
provisions of Hindu Adoptions and Maintenance Act, 1956. Sections 3 (b),
18 and 19 of the said Act read as under :-
"3. (b) "Maintenance" includes-
(i)in all cases, provision for food, clothing, residence,
education and medical attendance and treatment;
Section 18 - Maintenance of wife
(1) Subject to the provisions of this section, a Hindu
wife, whether married before or after the commencement
of this Act, shall be entitled to be maintained by her
husband during her life time.
Sub-section (2) of Section 18 thereof, however, lays down certain
exceptions therefor.
Sub-section (3) of Section 18 reads :-
"(3) A Hindu wife shall not be entitled to separate
residence and maintenance from her husband if she is
unchaste or ceases to be a Hindu by conversion to
another religion."
Section 19 - Maintenance of widowed daughter-in-law
(1) A Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to be
maintained after the death of her husband by her fatherin-
law:
Provided and to the extent that she is unable to maintain
herself out of her own earnings or other property or,
where she has no property of her own, is unable to obtain
maintenance-
(a) from the estate of her husband or her father or
mother, or
(b) from her son or daughter, if any, or his or her
estate.
(2) Any obligation under sub-section (1) shall not be
enforceable if the father-in law has not the means to do
so from any coparcenary property in his possession out of
which the daughter-in-law has not obtained any share,
and any such obligation shall cease on the re-marriage of
the daughter-in-law."

21. Maintenance of a married wife, during subsistence of marriage, is on
the husband. It is a personal obligation. The obligation to maintain a
daughter-in-law arises only when the husband has died. Such an obligation
can also be met from the properties of which the husband is a co-sharer and
not otherwise. For invoking the said provision, the husband must have a
share in the property. The property in the name of the mother-in-law can
neither be a subject matter of attachment nor during the life time of the
husband, his personal liability to maintain his wife can be directed to be
enforced against such property.

22. Wholly un-contentious issues have been raised before us on behalf of
Sonalben (wife). It is well settled that apparent state of affairs of state shall
be taken a real state of affairs. It is not for an owner of the property to
establish that it is his self-acquired property and the onus would be on the
one, who pleads contra. Sonalben might be entitled to maintenance from her
husband. An order of maintenance might have been passed but in view of
the settled legal position, the decree, if any, must be executed against her
husband and only his properties could be attached therefor but not of her

23. Sections 4 and 28 of the Hindu Adoptions and Maintenance Act read
as under :-
"4. Overriding effect of Act
Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force immediately
before the commencement of this Act shall cease to have
effect with respect to any matter for which provision is
made in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus
insofar as it is inconsistent with any of the provisions
contained in this Act.
28. Effect of transfer of property on right to maintenance
Where a dependant has a right to receive maintenance out
of an estate, and such estate or any part thereof is
transferred, the right to receive maintenance may be
enforced against the transferee if the transferee has notice
of the right or if the transfer is gratuitous; but not against
the transferee for consideration and without notice of the
right."

24. Section 4 provides for a non obstante clause. In terms of the said
provision itself any obligation on the part of in-laws in terms of any text,
rule or interpretation of Hindu Law or any custom or usage as part of law
before the commencement of the Act, are no longer valid. In view of the
non obstante clause contained in Section 4, the provisions of the Act alone
are applicable. Sections 18 and 19 prescribe the statutory liabilities in regard
to maintenance of wife by her husband and only on his death upon the
father-in-law, Mother-in-law, thus, cannot be fastened with any legal
liability to maintain her daughter-in-law from her own property or otherwise.

25. In Unnamalai Ammal vs. F.W. Wilson : AIR 1921 Madras 1187 the
obligation to maintain wife by a husband has been held to be a personal
obligation. This Court in Kirtikant D. Vadodaria vs. State of Gujarat :
(1996) 4 SCC 479 has held as under :-
"8. We have given serious thought and consideration to
the submissions made above by the learned counsel for
the appellant and notice that Dhayalal Hirachand, the
husband of Respondent 2 Smt Manjulaben, has been
found to be a person of sufficient means and income. It is
also true that there are 5 natural born sons of Respondent
2 besides 2 daughters, who are all major. It is also a fact
that Dalip one of the sons had contested the Municipal
Election and two other sons are carrying on various
businesses. According to the Law of the Land with
regard to maintenance, there is an obligation of the
husband to maintain his wife which does not arise by
reason of any contract \027 express or implied \027 but out of
jural relationship of husband and wife consequent to the
performance of marriage. Such an obligation of the
husband to maintain his wife arises irrespective of the
fact whether he has or has no property, as it is considered
an imperative duty and a solemn obligation of the
husband to maintain his wife."
It was, furthermore, observed :-
"Further, according to Section 20 of the Hindu Adoptions
and Maintenance Act, 1956, a Hindu is under a legal
obligation to maintain his wife, minor sons, unmarried
daughters and aged or infirm parents. The obligation to
maintain them is personal, legal and absolute in character
and arises from the very existence of the relationship
between the parties. But the question before us is whether
a stepmother can claim maintenance from the stepson
under Section 125 of the Code. In other words, whether
Section 125 of the Code includes within its fold the
stepmother also as one of the persons to claim
maintenance from her stepson."

26. We may notice that in Balwant Kaur vs. Chanan Singh : (2000) 6 SCC
310, this Court reiterated the said principle in the following words :-
"21. This provision clearly indicates that if the widowed
daughter-in-law is a destitute and has no earnings of her
own or other property and if she has nothing to fall back
upon for maintenance on the estate of her husband or
father or mother or from the estate of her son or daughter,
if any, then she can fall back upon the estate of her
father-in-law. This provision also indicates that in case of
a widowed daughter-in-law of the family if she has no
income of her own or no estate of her husband to fall
back upon for maintenance, then she can legitimately
claim maintenance from her father or mother. On the
facts of the present case, therefore, it has to be held that
Appellant 1, who was a destitute widowed daughter of
the testator and who was staying with him and was being
maintained by him in his lifetime, had nothing to fall
back upon so far as her deceased husband’s estate was
concerned and she had no estate of her own.
Consequently, as per Section 19(1)( a ) she could claim
maintenance from the estate of her father even during her
father’s lifetime. This was a pre-existing right of the
widowed daughter qua testator’s estate in his own
lifetime and this right which was tried to be crystallised
in the Will in her favour after his demise fell squarely
within the provisions of Section 22(2) of the
Maintenance Act."

27. The Domestic Violence Act provides for a higher right in favour of a
wife. She not only acquires a right to be maintained but also thereunder
acquires a right of residence. The right of residence is a higher right. The
said right as per the legislation extends to joint properties in which the
husband has a share.

28. Interpreting the provisions of the Domestic Violence Act this Court in
S.R. Batra vs. Taruna Batra : (2007) 3 SCC 169 held that even a wife could
not claim a right of residence in the property belonging to her mother-in-law,
stating :
"17. There is no such law in India like the British
Matrimonial Homes Act, 1967, and in any case, the
rights which may be available under any law can only
be as against the husband and not against the father-inlaw
or mother-in-law.
18. Here, the house in question belongs to the motherin-
law of Smt Taruna Batra and it does not belong to
her husband Amit Batra. Hence, Smt Taruna Batra
cannot claim any right to live in the said house.
19. Appellant 2, the mother-in-law of Smt Taruna Batra
has stated that she had taken a loan for acquiring the
house and it is not a joint family property. We see no
reason to disbelieve this statement."

29. Reliance placed by Mr. Goel on V. Tulasamma and others vs. Sehsa
Reddy (Dead) by L.Rrs. : [1977] 3 SCR 261 is wholly misplaced. The
question which arose for consideration therein was the nature or the right, a
widow acquires in the property in which she had been in possession in lieu
of maintenance. Interpreting sub-section (1) of Section 14 of the Hindu
Succession Act this Court held that the term "possessed" should receive a
wide meaning. It is in this context this Court noticed the authorities from
Sastric Hindu Law whereupon our attention has been drawn :-
"Similar observations have been made by the learned
author at p. 528 of the book which may be extracted thus:
’According to both the schools, the lawfully
wedded wife acquires from the moment of her
marriage a right to the property belonging to the
husband at the time and also to any popery that
may subsequently be acquired by him. so that she
becomes a co-owner of the husband, though her
right is not co-equal to that of the husband, but a
subordinate one. owing to her disability founded
on her status of perpetual or life long tutelage or
dependence.
...
This right of the wife to maintenance from
her husband is not lost even if the husband
renounce Hinduism.
This right subsists even after the husband’s
death although her husband’s right as distinguished
from hers may pass by survivorship or by
succession to sons or even to collaterals; these
simply step into the position of her husband, and
she is required by Hindu law to live under their
guardianship after her husband’s death.’ "

30. The orders passed by the High Court which are impugned before us
are, thus, wholly unsustainable. They suffer from total non-application of
mind.

31. The said orders might have been passed only on consideration that
Sonalben is a harassed lady, but the fact that the appellant is also a much
harassed lady was lost sight of. She has more sinned than sinning.
Appellant and her husband are old. They suffer from various diseases. They
have been able to show before the Court that they had to go to the United
States of America for obtaining medical treatment. They, we would assume,
have violated the conditions of grant of bail but the consequence therefore
must be kept confined to the four corners of the statutes.

32. The provisions contained in Section 82 of the Code of Criminal
Procedure were put on the statute book for certain purpose. It was enacted
to secure the presence of the accused. Once the said purpose is achieved, the
attachment shall be withdrawn. Even the property which was attached,
should be restored. The provisions of the Code of Criminal Procedure do
not warrant sale of the property despite the fact that the absconding accused
had surrendered and obtained bail. Once he surrenders before the Court and
the Standing Warrants cancelled, he is no longer an absconder. The purpose
of attaching the property comes to an end. It is to be released subject to the
provisions of the Code. Securing the attendance of an absconding accused,
is a matter between the State and the accused. Complainant should not
ordinarily derive any benefit therefrom. If the property is to be sold, it vests
with the State subject to any order passed under Section 85 of the Code. It
cannot be a subject matter of execution of a decree, far less for executing the
decree of a third party, who had no right, title or interest thereon.

33. The learned Metropolitan Magistrate had, in his order dated 5th
January, 2004 wrongly asked the District Magistrate to put the said
properties on auction sale stating that to be belonging to the appellants and
their son. The Mamlatdar appears to have exceeded his jurisdiction in trying
to evict the 1st respondent. His right as a tenant could not have been affected
by reason of any order of attachment. An order of attachment of a property
has nothing to do with the right of tenancy. The terms and conditions of
tenancy, being governed by statute, the tenant cannot be evicted except in
accordance with law. It is a matter of grave concern that an independent
right was also sought to be interfered with at the instance of Sonalben

34. Right to object in terms of Section 84 of the Code to which reliance
has been placed by Mr. Mayur Shah, could not have been invoked by the
wife as she has no independent claim over the property. The said provisions
also could not have been invoked for the purpose of execution of a decree.

35. It is in the aforementioned context that we may now consider the
impugned judgment of the High Court directing cancellation of bail of the
appellants.

36. The fact that they have surrendered is not in dispute. They are of old
age as also the fact that they have been suffering from various diseases has
also not been disputed.

37. The contention of Sonalben that the passports had not been deposited,
appears to be wholly incorrect. Ajitbhai Revandas Patel was the holder of
U.S. Passport. The same having expired another Passport bearing No.
217921248 was issued. It is that passport which was deposited. This is the
current Passport. Allegations that they are having other passports and may
leave the country appears to be wholly without any basis. They have been
attending the courts. The observation made by the Metropolitan Magistrate
that they had not come of their own is unfortunate. Nobody wants to come
to court of law and that too as an accused, of his own.

38. The High Court committed a manifest illegality in directing
cancellation of bail in so far as it failed to take into consideration that the
factors relevant for setting aside an order granting bail and directing
cancellation of bail are wholly distinct and different. An application for
cancellation of bail must be premised on the factors envisaged under subsection
(2) of Section 439 of the Code of Criminal procedure. The learned
Metropolitan Magistrate in passing the order dated 27th June, 2006 while
granting bail took into consideration all the relevant factors. He imposed a
fine on them. Even the passports had been surrendered. Application for
cancellation of bail was filed on a mis-statement that the passports had not
been surrendered. Various contentions, as noticed hereinbefore, in regard to
purported suffering of the wife appears to have been taken into consideration
which were wholly irrelevant. We have noticed hereinbefore that such
contentions have also been raised before us not on the basis that there exists
and legal principle behind the same but as an argument of desperation.

39. In Gurcharan Singh and others vs. State (Delhi Adminsitration) :
1978 (2) SCR 358 this Court held :
"24. Section 439(1) Cr. P.C. of the new Code, on the
other hand, confers special powers on the High Court or
the Court of Session in respect of bail. Unlike under
Section 437(1) there is no ban imposed under Section
439(1), Cr. P.C. against granting of bail by the High
Court or the Court of Session to persons accused of an
offence punishable with death or imprisonment for life. It
is, however, legitimate to suppose that the High Court or
the Court of Session will be approached by an accused
only after he has failed before the Magistrate and after
the investigation has progressed throwing light on the
evidence and circumstances implicating the accused.
Even so, the High Court or the Court of Session will have
to exercise its judicial discretion in considering the
question of granting of bail under Section 439(1) Cr. P.C
of the new Code. The overriding considerations in
granting bail to which we adverted to earlier and which
are common both in the case of Section 437(1) and
Section 439(1) Cr. P.C. of the new Code are the nature
and gravity of the circumstances in which the offence is
committed; the position and the status of the accused
with reference to the victim and the witnesses; the
likelihood, of the accused fleeing from justice; of
repeating the offence; of jeopardising his own life being
faced with a grim prospect of possible conviction in the
case; of tampering with witnesses; the history of the case
as well as of its investigation and other relevant grounds
which, in view of so many valuable factors, cannot be
exhaustively set out.
25. The question of cancellation of bail under Section
439(2) Cr. P.C. of the new Code is certainly different
from admission to bail under Section 439(1) Cr. P.C. The
decisions of the various High Courts cited before us are
mainly with regard to the admission to bail by the High
Court under Section 498 Cr. P.C. (old). Power of the
High Court or of the Sessions Judge to admit persons to
bail under Section 498 Cr. P.C. (old) was always held to
be wide without any express limitations in law. In
considering the question of b ail justice to both sides
governs the judicious exercise of the Court’s judicial
discretion."
[See also Bhagirath Singh s/o. Mahipat Singh Judeja vs. State of
Gujarat : [1984] 1 SCR 839 and Jayendra Saraswathi Swamigal vs. State
of Tamilnadu : 2005 (2) SCC 13].

40. We may notice that recently a Bench of this Court considered the
consequence of issuance of warrant of arrest at some length in Inder Mohan
Goswami and another vs. State of Uttaranchal and others : (2007) 12
SCALE 15. It was held :-
"26. Before parting with this appeal, we would like to
discuss an issue which is of great public importance, i.e.
how and when warrants should be issued by the Court?
It has come to our notice that in many cases that bailable
and non-bailable warrants are issued casually and
mechanically. In the instant case, the court without
properly comprehending the nature of controversy
involed and without exhausting the available remedies
issued non-bailable warrants. The trial court disregard
the settled legal position clearly enumerated in the
following two cases."
It was furthermore observed
"51. In complaint cases, at the first instance, the court
should direct serving of the summons along with the
copy of the complaint. If the accused seem to be avoiding
the summons, the court, in the second instance should
issue bailable- warrant. In the third instance, when the
court is fully satisfied that the accused is avoiding the
court’s proceeding intentionally, the process of issuance
of the non-bailable warrant should be resorted to.
Personal liberty is paramount, therefore, we caution
courts at the first and second instance to refrain from
issuing non-bailable warrants."

41. Keeping in view the entirety of the facts and circumstances of the case
we are of the opinion that gross injustice has been caused to the appellant.
She did not deserve such harsh treatments at the hands of the High Court.
Respondent No.3 speaks of her own human rights, forgetting the human
rights of the appellant, far less the funadamental right of life and liberty
conferred on an accused in terms of Article 21 of the Constitution of India.

42. The right of property is no longer a fundamental right. But still it is a
constitutional right. Apart from constitutional right it is also a human right.
The procedures laid down for deprivation thereof must be scrupulously
complied with [See-Devinder Singh and Ors. vs. State of Punjab and Ors. :
JT 2007 (12) SC 256].

43. Last but not the least, a plea of equity has been raised by Mr. Shah
stating that this Court should issue some directions keeping in view the
equitable principles. Reliance has been placed on Chandra Bansi Singh vs.
State of Bihar : (1984) 4 SCC 316, wherein it was observed :-
"16. On an analysis of the various steps taken by the
parties and others in the taking of possession, there is
undoubtedly a delay of about 1 years and for the purpose
of calculation and convenience when rounded off, the
delay may be taken to be of two years. So far as this
delay is concerned, the appellants have undoubtedly a
case for payment of some additional compensation in
equity though not under law and as this Court is not only
a Court of law but a Court of equity as well, it will be
impossible for us to deny this relief to the appellants.
After taking into consideration the various shades and
aspects of the case we are clearly of the opinion that apart
from compensation which may be awarded by the
Collector or enhanced by the Judge or a higher Court, the
appellants should get an equitable compensation in the
form of interest calculated at the rate of 7 per cent per
annum for two years on the value of land owned by each
land-owner. This equitable compensation has been
awarded in the special facts of this case and will not be
the subject-matter of appeal, if any, under the Act on the
amount of compensation. "

44. The said case arose out of a proceeding under the Land Acquisition
Act which has no relevance to the issues involved in these appeals.

45. On cancellation of bail Mr. Shah has relied upon a decision of this
Court in Raghubir Singh vs. State of Biahr: (1986) 4 SCC 481 wherein this
Court observed :-
"22. The result of our discussion and the case-law is this:
An order for release on bail made under the proviso to
Section 167(2) is not defeated by lapse of time, the filing
of the charge-sheet or by remand to custody under
Section 309(2). The order for release on bail may
however be cancelled under Section 437(5) or Section
439(2). Generally the grounds for cancellation of bail,
broadly, are, interference or attempt to interfere with the
due course of administration of justice, or evasion or
attempt to evade the course of justice, or abuse of the
liberty granted to him. The due administration of justice
may be interfered with by intimidating or suborning
witnesses, by interfering with investigation, by creating
or causing disappearance of evidence etc. The course of
justice may be evaded or attempted to be evaded by
leaving the country or going underground or otherwise
placing himself beyond the reach of the sureties. He may
abuse the liberty granted to him by indulging in similar
or other unlawful acts. Where bail has been granted
under the proviso to Section 167(2) for the default of the
prosecution in not completing the investigation in 60
days, after the defect is cured by the filing of a chargesheet,
the prosecution may seek to have the bail cancelled
on the ground that there are reasonable grounds to
believe that the accused has committed a non-bailable
offence and that it is necessary to arrest him and commit
him to custody. In the last mentioned case, one would
expect very strong grounds indeed. "

46. A bare perusal of the decision of this Court demonstrates that the ratio
laid therein runs counter to the submissions of the learned counsel.

47. Reliance has also been placed on I.J. Divakar and others vs. Govt. of
Andhra Pradesh and another : (1982) 3 SCC 341. The said decision was
rendered under the Industrial Law.
Regularization was directed to be provided to the workmen. A
Constitution Bench of this Court in Secretary, State of Karnataka and others
vs. Umadevi and others : (2006) 4 SCC 1 opined that all such decisions shall
Sympathy or sentiment, as is well known, should not allow the Court
to have any effect in its decision making process. Sympathy or sentiment
can be invoked only in favour a person who is entitled thereto. It should
never be taken into consideration as a result whereof the other side would
suffer civil or evil consequences.

48. We are at a loss to understand as to on what premise such a contention
has been raised. If we accept the contention of the learned counsel the same
would mean that we send the old couple to jail or deprive them of their
lawful right of a valuable property and/or ask them to meet obligations
which statutorily are not theirs. Such a direction, in our opinion, should also
not be passed, keeping in view the conduct of the 3rd respondent. She not
only filed a large number of cases against her in-laws, some of which have
been dismissed for default or withdrawn but also have been filing
applications for cancellation of their bail on wholly wrong premise.

49. We may also notice that after the arguments were over, a strange
submission was made before us. Learned counsel for respondent No.3
submitted that he may be permitted to withdraw from the case and the 3rd
respondent be allowed to argue in person. Such a submission was not
expected from a counsel practicing in this Court or form a party, who herself
is an Advocate. We deprecate such practice.

50. Having regard to the facts and circumstances of this case we are of
the opinion that the interest of justice shall be subserved if the impugned
judgments are set aside with the following directions :-
i) The property in question shall be released from attachment.
ii) The 3rd respondent shall refund the sum of Rs. 1 lakh to the
respondent with interest @ 6% per annum.
iii) The amount of Rs. 4 lakhs deposited by the 1st respondent shall
be refunded to him immediately with interest accrued thereon.
iv) The 3rd respondent should be entitled to pursue her remedies
against her husband in accordance with law.
v) The Learned Magistrate before whom the cases filed by the 3rd
respondent are pending should bestow serious consideration of
disposing of the same, as expeditiously as possible.
vi) The 3rd respondent shall bear the costs of the appellant which is
quantified at Rs.50,000/- (Rupees fifty thousand) consolidated.

51. The appeals are allowed with the aforesaid directions.
I.A. for direction
Dismissed.

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Delhi High Court: Denying sex to spouse is mental cruelty & ground for divorce. Shashi Bala vs Rajiv Arora, 21.03.12, Justice Kailash Gambhir

Delhi High Court: Denying sex to spouse is mental cruelty & ground for divorce. Shashi Bala vs Rajiv Arora, 21.03.12, Justice Kailash Gambhir



IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 21.03.2012

FAO No.185/2001

Smt. Shashi Bala ……appellant.
Through: Mr. Atul Bandhu, Adv.

Vs.

Shri Rajiv Arora ……Respondents
Through: Mr. R.G. Srivastava, Adv.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.

1. By this appeal filed under section 28 of the Hindu Marriage
Act, 1955, the appellant seeks to challenge the impugned order and
decree dated 12.2.2001 passed by the learned Trial Court whereby a
decree of divorce in favour of the respondent husband under Section
13(i)(a) of the Hindu Marriage Act was granted and the counter claim
FAO 185/01 Page 2 of 19
filed by the appellant seeking a decree for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act was dismissed.

2. Brief facts of the case relevant for deciding the present
appeal is that the marriage between the parties was solemnized on
17.2.1991 according to Hindu rites and ceremonies. It was stated by
the husband in his divorce petition that after the solemnization of the
marriage, right from the inception, the attitude of the appellant was
indifferent and she complained that the marriage had not been
solemnized with a man of her taste. As per the respondent husband,
the appellant had refused to participate in the traditional ceremony of
dud-mundri by saying that she did not like all this but without
disclosing any reasons. As per the respondent, the appellant also did
not take any interest in the dinner which was served on the wedding
night i.e. 18.2.1991. It is also the case of the respondent that when
both of them went to their bedroom around 11.30 p.m. the appellant
was not responsive and she did not allow the respondent to have
sexual intercourse with her. The respondent has alleged that it is only
on 25.2.1991, that he was allowed to have sexual intercourse with the
appellant for the first time, but again the appellant remained
unresponsive and such conduct of the appellant caused mental cruelty
to the respondent. It is also the case of the respondent husband that
on 13.4.1991, the appellant refused to perform “chuda ceremony”
which not only hurt the sentiments of the respondent but his parents
as well. It was also stated that the appellant in fact removed the
chuda and threw it under the bed by saying that she did not believe in
all these things. It is also the case of the respondent that the appellant
used to visit her parents on her own without even informing the
respondent and finally left the matrimonial home on 16.4.1992 and
since then she did not come back. It is also the case of the respondent
that he had sexual intercourse with the appellant only for about 10-15
times during her stay with him for a period of about 5 months. It is
also the case of the respondent that the appellant used to quarrel with
his old parents and she also used to insist to shift to her parents’
house at Palam colony. The respondent also alleged that on 11th
March, 1991 the appellant tried to illegally remove the jewellery from
the almirah which belonged to his mother and which was kept for his
unmarried sister and while doing so she was caught red handed. It is
also the case of the respondent that the appellant made a false
complaint with the Crime Against Women Cell and Family Counsel
Office, which complaints were ultimately withdrawn by her. Based on
these allegations the respondent husband claimed the decree of
divorce under Section 13(1)(ia) of the Hindu Marriage Act.

3. In the written statement filed by the appellant wife, she
denied all the abovesaid allegations leveled by the respondent
husband. She denied that she had refused to participate in the “Dud
Mundari Ceremony”. The appellant had also stated that after taking
lunch on the wedding day, one lady relative of her in-laws and parents
of the respondent remarked that she did not bring bed and sofa sets
in her dowry and in response she informed them that her father had
given a bank draft of Rs. 30,000/- besides presenting costly clothes,
ornaments, TV, clothes for relatives, utensils and other articles in the
marriage. It is also the defence of the appellant that on the wedding
night the respondent entered the bedroom showering filthy abuses on
the appellant and told her that she had not brought the dowry
according to their expectations. It is also her case that she was also
told by the respondent that the bank drafts should have been
prepared either in the name of the respondent or in the name of his
father. It was denied by the appellant that her attitude was indifferent
at the time of dinner. She also denied the allegation of nonconsummation
of the marriage on the wedding night. The appellant
took a stand that right from the wedding night i.e. 18.2.1991 the
parties had normal physical relationship with each other. She also
denied that she did not perform “chuda ceremony” or threw the chuda
under the bed. She also denied that she left the matrimonial home on
16.4.1992. The appellant also took a stand that on 23.4.1992 the
respondent, his parents and two sisters asked her to bring
Rs. 50,000/- or otherwise leave the matrimonial home and on her
refusal to meet the said demand, she was thrown out of the
matrimonial home. The appellant denied that she had sexual
relationship with the respondent only 10-15 times or she had refused
to have sex with the respondent. She also denied that she never
insisted the respondent to live in the house of her parents. She also
denied that on 11th March, 1991 she made any attempt to steal the
jewellery or she was caught red handed. She also stated that in the
last week of April, 1991 she was told by the respondent to withdraw
Rs. 30,000/- from her bank account as the old sofa lying in the house
required replacement but no new sofa set was purchased when she
brought the said money and gave the same to the mother of the
respondent. The appellant also took a stand that she was prepared to
live with the respondent as she had withdrawn from her society
without any reasonable cause and without any fault on her part.

4. Based on the pleadings of the parties, the learned Trial
Court framed the following issues:-
(i) Whether the respondent has treated the petitioner with cruelty?
(ii) Relief.
(iii) Whether the petitioner has withdrawn from the company of the
respondent without any reasonable cause or excuse? If so, its effect.
The respondent in evidence examined himself as PW2 besides
examining Shri Dalveer Singh, Head Constable as PW1 and Shri
Vishwamitra, father of the respondent as PW 3, his colleague Shri
Vijay Kumar Taygi PW4. The appellant on the other hand examined
herself as RW1 with no other evidence in support.

5. After taking into consideration the pleadings of the parties,
the learned Trial Court found that the refusal of the appellant wife to
participate in the “Dud Mundari ceremony” and thereafter “Chudha
ceremony”, which were customary rituals in the family of the
respondent husband caused embarrassment and humiliation to the
respondent and such acts on the part of the appellant amounted to
cruelty. The learned Trial Court also found that in the span of one
year and two months of the married life, the parties had sex only for
about 10-15 times and also denial of the appellant for sexual
relationship on the very first night of the marriage is a grave act of
cruelty as healthy sexual relationship is one of the basic ingredients of
a happy marriage. The learned Trial Court also found that filing of the
complaints by the appellant with the Crime Against Women Cell and
Family Counsel Office also collectively caused mental cruelty to the
respondent husband. Accordingly, the learned trial court granted a
decree of divorce in favour of the respondent and against the
appellant and consequently also dismissed her counter claim for
restitution of conjugal rights.

6. Mr. Atul Bandhu, learned counsel appearing for the
appellant before this court vehemently argued that the learned Trial
Court did not refer to the evidence of the appellant wife wherein she
has denied all the allegations leveled by the respondent husband in
his petition for divorce. Counsel also contended that the marriage was
consummated on the very first night and the appellant wife never
denied sexual relationship to the respondent husband. Counsel also
submitted that nowhere the respondent husband has stated that as to
when he was refused any such sexual relationship by the appellant.
Counsel thus argued that the learned Trial Court has granted the
decree of divorce merely on the ground that the appellant wife did not
participate in the dud-mundari ceremony and chudha ceremony and
also she did not allow the husband to have sexual intercourse more
than 10-15 times in a period of 5 months and as per the counsel, these
grounds cannot be treated sufficient enough to constitute cruelty as
envisaged under Section 13(ia) of the Hindu Marriage Act. In support
of his arguments, counsel for the appellant placed reliance on the
judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem
Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs)
(1994) 1 SCC 337.

7. Mr. R.G. Srivastava, learned counsel appearing for the
respondent on the other hand fully supported the reasons given by the
learned Trial Court which entitled him to claim a decree of divorce
under Section 13(ia) of the Hindu Marriage Act. Counsel for the
respondent also submitted that the appellant did not respect the
sentiments of the respondent and his family members by refusing to
perform customary rituals like dud-mundari ceremony and chudha
ceremony. Counsel also argued that the appellant did not discharge
her matrimonial obligations either towards her husband or even
towards his old parents. Counsel also submitted that the appellant
made false complaints to the Crime Against Women Cell and to the
Family Counsel Office, which she later withdrew and such act of the
appellant also caused mental cruelty to the respondent. Counsel also
submitted that by denying normal sexual relationship to the
respondent, the appellant had shaken and destroyed the very
foundation of a sound marriage. Counsel also submitted that the
respondent had duly discharged his burden to prove the case set up
by him where as the appellant failed to discharge her burden and
even could not prove her defence. In support of his arguments,
counsel for the respondent placed reliance on the following
judgments:-
1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.
2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.
3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.
4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582
5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.

8. I have heard learned counsel for the parties and given my
thoughtful consideration to the arguments advanced by them.


9. Cruelty as a ground for divorce is nowhere defined in the Hindu
Marriage Act as it is not capable of precise definition. There cannot be
any straitjacket formula for determining whether there is cruelty or
not and each case depends on its own facts and circumstances. What
may be cruelty in one case may not be cruelty in other and the
parameter to judge cruelty as developed through judicial
pronouncements is that when the conduct complained of is such that
it is impossible for the parties to stay with each other without mental
agony, torture and stress. It has to be something much more than the
ordinary wear and tear of married life. The conduct complained of
should be grave and weighty and touch a pitch of severity to satisfy
the conscience of the court that the parties cannot live together with
each other anymore without mental agony, distress and torture. The
main grievance of the respondent herein is the denial of the appellant
to have normal sexual relationship with the respondent. As per the
case of the respondent, during the short period of 5 months he had
sexual intercourse with the appellant only 10-15 time while the plea
taken by the appellant is that she had never denied sex to the
respondent. The courts have through various judicial pronouncements
taken a view that sex is the foundation of marriage and marriage
without sex is an anathema. The Division Bench of this Court in the
celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal
Kishan Nijhawan AIR1973Delhi200 held as under:
“In these days it would be unthinkable proposition to suggest that the wife
is not an active participant in the sexual life and therefore, the sexual
weakness of the husband which denied normal sexual pleasure to the wife is
of no consequence and therefore cannot amount to cruelty. Marriage
without sex is an anathema. Sex is the foundation of marriage and without
a vigorous and harmonious sexual activity it would be impossible for any
marriage to continue for long. It cannot be denied that the sexual activity in
marriage has an extremely favorable influence on a woman's mind and
body, the result being that if she does not get proper sexual satisfaction it
will lead to depression and frustration. It has been said that the sexual
relations when happy and harmonious vivifies woman's brain, develops her
character and trebles her vitality. It must be recognised that nothing is
more fatal to marriage than disappointments in sexual intercourse.”
The learned Trial Court referred to the judgment of this court in the
case of Shankuntla Kumari vs. Om Prakash Ghai
AIR1983Delhi53 wherein it was held that:
“(25) A normal and healthy sexual relationship is one of the basic
ingredients of a happy and harmonious marriage. If this is not possible due
to ill health on the part of one of the spouses, it may or may not amount to
cruelty depending on the circumstances of the case. But willful denial of
sexual relationship by a spouse when the other spouse is anxious for it,
would amount to mental cruelty, especially when the parties are young and
newly married.”
Hence, it is evident from the aforesaid that willful denial of sexual
intercourse without reasonable cause would amount to cruelty. In the
authoritative pronouncement of the Hon’ble Supreme Court in Samar
Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court
took into account the parameters of cruelty as a ground for divorce in
various countries and then laid down illustrations, though not
exhaustive, which would amount to cruelty. It would be relevant to
refer to the following para 101 (xii) wherein it was held as under:-
“(xii) Unilateral decision of refusal to have intercourse for considerable
period without there being any physical incapacity or valid reason may
amount to mental cruelty.”
Although it is difficult to exactly lay down as to how many times any
healthy couple should have sexual intercourse in a particular period of
time as it is not a mechanical but a mutual act, however, there cannot
be any two ways about the fact that marriage without sex will be an
insipid relation. Frequency of sex cannot be the only parameter to
assess the success or failure of a marriage as it differs from couple to
couple as to how much importance they attach to sexual relation vis a
vis emotional relation. There may be cases where one partner to the
marriage may be over sexual and the other partner may not have
desire to the same level, but otherwise is fully potent. Marriage is an
institution through which a man and a woman enter into a sacred
bond and to state that sexual relationship is the mainstay or the
motive to be achieved through marriage would be making a mockery
of this pious institution. By getting married, a couple agrees to share
their lives together with all its moments of joy, happiness and sorrow
and the sexual relationship between them brings them close and
intimate by which their marital bond is reinforced and fortified. There
may not be sexual compatibility of a couple right from inception of the
relationship and depending upon physical, emotional, psychological
and social factors, the compatibility between some couples may be
there from the beginning and amongst some may come later.
Undoubtedly, a normal and healthy couple should indulge into regular
sexual relationship but there may be exceptions to this and what may
be normal for some may not be normal for others as it would depend
upon various factors such nature of job, stress levels, social and
educational background, mood patterns, physical well being etc.
Indisputably, there has to be a healthy sexual relationship between a
normal couple, but what is normal cannot be put down in black and
white.

10. Adverting back to the facts of the present case, the
marriage between the parties was solemnized on 17.2.1991 and
according to the appellant she was forced to leave the matrimonial
house on 16.4.1992, whereas as per the respondent husband, the
appellant wife practically stayed at the matrimonial home only for a
period of five months as for rest of the period she stayed at her
parental house. The case of the respondent is that he had sex with the
appellant only for about 10-15 times in a span of five months of
married life and that he was denied sexual relationship on the very
first night of their marriage and denial of sex at the wedding night
caused great mental cruelty to him. The respondent husband also
stated that he was allowed to have sexual intercourse by the appellant
for the first time only on 25.2.1991.The appellant wife has denied the
said allegations of the respondent husband and in defence stated that
she was having normal sexual relationship with her husband and even
had sexual intercourse on the wedding night. The learned Trial Court
after analyzing the evidence adduced by both the parties found the
version of the appellant untrustworthy and unreliable while that of the
respondent, much more credible and trustworthy. The appellant on
one hand took a stand that on 18.2.1991 the atmosphere on that night
was very tense so much so that, both the parties could not sleep and
speak to each other and she did not even take proper food and the
whole night there was tension between the parties and the
atmosphere was fully charged, but at the same time in the crossexamination
of PW2 the suggestion was made by counsel that the
appellant touched the feet of the respondent when he entered the
room on the said wedding night and she also admitted that her
husband had never taken liquor in her presence and he had never
come to her in drunken state. It would be appropriate to reproduce
para 55 of the Trial Court judgment to bring to surface the said
contradiction on the part of the appellant.
“55.From the evidence on record, it is gathered that on the
wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to
be performed but the respondent wife refused to participate in the
same. This version of PW 2 has been fully corroborated by his
father PW 3. The husband i.e. Rajiv Arora, had entered by both
PW 2 and RW1. RW 1 in her cross-examination has stated that
their marriage had been consummated on that very night and her
husband had come to her and she did not have to persuade the
petitioner. On the other hand the petitioner has stated that their
marriage could not be consummated on their wedding night and
he had sex with his wife for the first time only on 25.2.91. RW1 in
her cross-examination has stated that the atmosphere that night
was very tense and both the parties could not sleep and they did
not speak to each other and her husband had grievance about the
insufficient dowry which had been given in the marriage . RW 1
has also admitted that on 18.2.91, she did not take proper food as
she was not feeling well. This version of RW1 that she did not
take food that night is corroborated by the version of PW1 who
has stated that on the wedding night at the time when the dinner
was served the attitude of the respondent was indifferent and she
did not take any dinner but she took only a little sweet.”


11. In matrimonial cases, more often than not it is a
challenging task to ascertain as to which party is telling truth as
usually it is the oral evidence of one party against the oral evidence of
the other. What happens in the four walls of the matrimonial home
and what goes on inside the bed room of the couple is either known to
the couple themselves or at the most to the members of the family,
who are either residing there or in whose presence any incident takes
place. Whether the couple has had sex and how many times or have
had not had sex and what are the reasons; whether it is due to the
denial or refusal on the part of the wife or of the husband can only be
established through the creditworthiness of the testimonies of the
parties themselves. Consequently, the absence of proper rebuttal or
failure of not putting one’s case forward would certainly lead to
acceptance of testimony of that witness whose deposition remains
unchallenged. In the present case, the testimony of the respondent
that the appellant was never responsive and was like a dead wood
when he had sexual intercourse with her remained unrebutted. It is
not thus that the respondent had sex with her wife only about 10-15
times from the date of his marriage within a period of five months, but
the cruel act of the appellant of denying sex to the respondent
especially on the very first night and then not to actively participate in
the sex even for the said limited period for which no contrary
suggestion was given by the appellant to the respondent in his crossexamination.
The respondent has also successfully proved on record
that the appellant did not participate in the customary rituals of dud
mundri and that of chudha ceremony, which caused grave mental
cruelty to the respondent. It is a matter of common knowledge that
after the marriage, certain customary rituals are performed and the
purpose of these rituals is to cement the bond of marriage. The
question whether there was a refusal on the part of the respondent
not to perform the ritual of dud-mundari and chudha ceremony is
difficult to be answered as on one hand, the appellant has alleged that
she had duly participated in the ceremonies while on the other hand
the respondent has taken a stand that there was refusal on the part of
the appellant to participate in the ceremonies. No doubt the testimony
of the respondent has been supported by the evidence of his father
and there is no corroborative evidence from the side of the appellant,
although her brother had accompanied her in doli and in such
backdrop, adverse inference thus has to be drawn against the
appellant for not producing her brother in evidence who could be the
best witness to prove the defence of the appellant alleging her
participation in the dud-mundari ceremony. Undeniably, these
customary ceremonies are part of the marriage ceremony and refusal
of the same that too in the presence of the family members of the
husband would be an act of cruelty on the part of the wife. The
appellant has also failed to prove any demand of dowry made by the
respondent or his family members as no evidence to this effect was
led by the appellant. The appellant herein also filed criminal
complaints against the respondent and his family members and later
withdrew the same. Undoubtedly, it is the right of the victim to
approach the police and CAW cell to complain the conduct of the
offending spouse, however, frivolous and vexatious complaints like in
the present case led to cause mental torture and harassment to the
respondent and his family members. Thus, taking into account the
conduct of the appellant in totality, this court is of the view that the
same amounts to causing mental cruelty to the respondent.

12. Before parting with the judgment, this court would like to
observe that the sex starved marriages are becoming an undeniable
epidemic as the urban living conditions today mount an
unprecedented pressure on couples. The sanctity of sexual
relationship and its role in reinvigorating the bond of marriage is
getting diluted and as a consequence more and more couples are
seeking divorce due to sexual incompatibility and absence of sexual
satisfaction. As already stated above, to quantify as to how many
times a healthy couple should have sexual intercourse is not for this
court to say as some couples can feel wholly inadequate and others
just fine without enough sex. “That the twain shall become one flesh,
so that they are no more twain but one” is the real purpose of
marriage and sexual intercourse is a means, and an integral one of
achieving this oneness in marriage.

13. This Court therefore, does not find any kind of illegality or
perversity in the findings given by the learned Trial Court in the
impugned judgment dated 12.2.2001 and the same is accordingly
upheld. The present appeal filed by the appellant is devoid of any
merits and the same is hereby dismissed.

KAILASH GAMBHIR, J
21.03. 2012