Denying sex to spouse ground for divorce

Denying sex to spouse ground for divorce - Delhi High Court

 
FAO 185/01                                                                                                                                               Page 1 of 19


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
FAO 185/01                                                                                                                                               Page 3 of 19

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
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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 non-
consummation  of the marriage on the wedding night. The appellant
FAO 185/01                                                                                                                                               Page 5 of 19

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
FAO 185/01                                                                                                                                               Page 6 of 19

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
FAO 185/01                                                                                                                                               Page 7 of 19

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.
FAO 185/01                                                                                                                                               Page 8 of 19

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
FAO 185/01                                                                                                                                               Page 9 of 19

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. 
FAO 185/01                                                                                                                                               Page 10 of 19

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
FAO 185/01                                                                                                                                               Page 11 of 19

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
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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
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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
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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
FAO 185/01                                                                                                                                               Page 15 of 19

whole night  there was  tension between the parties  and  the
atmosphere was fully charged, but at the same time in the cross-
examination 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.”
  
FAO 185/01                                                                                                                                               Page 16 of 19

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
FAO 185/01                                                                                                                                               Page 17 of 19

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 cross-
examination. 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
FAO 185/01                                                                                                                                               Page 18 of 19

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
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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




http://lobis.nic.in/dhc/KG/judgement/24-03-2012/KG21032012FAO1852001.pdf

Delhi High Court - s125 Crpc - Affidavit from both parties for income ,personal details ,expediture of self and family members -Puneet Kaur vs Inderjit Singh Sawhney on 12 September, 2011

Delhi High Court - s125 Crpc - Affidavit from both parties for income ,personal details ,expediture of self and family members -Puneet Kaur vs Inderjit Singh Sawhney on 12 September, 2011  

CM(M) No.79/2011              Page 1 of 12

4
*  IN THE HIGH COURT OF DELHI AT NEW DELHI

+   CM(M) 79/2011

%                    Date of decision: 12th
 September, 2011


  PUNEET KAUR                              ..... Petitioner
        Through :  Mr. Ashok Chhabra with
Mr. Sunjayjyoti Singh Paul,
Advs.
      versus

  INDERJIT SINGH SAWHNEY               ..... Respondent
        Through :  Respondent in person.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
 
1.  Whether Reporters of Local papers may     YES
be allowed to see the Judgment?

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

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

JUDGMENT (ORAL)

CM(M)No.79/2011 and CM No.1756/2011
1.   The petitioner has challenged the order dated 26th

November, 2010 whereby her application  for maintenance
under Section 24 of the Hindu Marriage Act was dismissed by
the learned Trial Court. 
2.  The petitioner  claimed  maintenance and litigation
expenses from her husband on the ground that she was unable
to maintain herself and her two children aged 13 and 16 years.  CM(M) No.79/2011              Page 2 of 12

The  petitioner averred that she was not gainfully employed
and was receiving interest income of about  `8,000/-  to
`10,000/-  per month from the investments whereas the
monthly expenses of the children were to the tune of `25,000/-
per month.  The petitioner further averred that the respondent
was running the business of transport in the name of Bakshi
Transport Service and his income was more than `2,00,000/- to
`3,00,000/- per month. 
3.  The respondent contested the above application before
the learned Trial Court on the ground that the respondent was
unemployed and had no income.  The respondent averred that
he was living like a pauper and had no money even for two
proper meals a day.  He also stated that he had no shelter.
The respondent also alleged that the petitioner’s annual
income was `3,00,000/- per month from three sources, namely
`1,00,000/-  to `2,00,000/- per month from business, `60,000/-
per month from salary and `20,000/- per month from interest. 
4.  The learned Trial Court believed the respondent and held
that there was no material record to show that the respondent
had any income and, therefore, the petitioner’s application was
dismissed. CM(M) No.79/2011              Page 3 of 12

5.  In Bharat Hegde v. Saroj Hegde, 140 (2007) DLT 16,
this  Court  laid down the following principles  for fixing the
maintenance under Section 24 of the Hindu Marriage Act:-
“4. Right to maintenance is an incident of the
status from an estate of matrimony. Interim
maintenance has an element of alimony, which
expression in its strict sense means allowance
due to wife from husband on separation. It has
its basis in social conditions in United Kingdoms
under which a married woman was economically
dependent and almost in a position of tutelage to
the husband and was intended to secure justice
to her.
5. Section 24 of the Hindu Marriage Act goes a
step further inasmuch as it permits maintenance
to be claimed by the husband even against the
wife.
6. While considering a claim for interim
maintenance,  the court has to keep in mind the
status of the parties, reasonable wants of the
applicant, the income and property of the
applicant. Conversely, requirements of the non
applicant, the income and property of the non
applicant and additionally the other family
members to be maintained by the non applicant
have to be taken into all. Whilst it is important to
insure that the maintenance awarded to the
applicant is sufficient to enable the applicant to
live in somewhat the same degree of comfort as
in the matrimonial home, but it should not be so
exorbitant that the non applicant is unable to
pay.
7. Maintenance awarded cannot be punitive. It
should aid the applicant to live in a similar life
style she/he enjoyed in the matrimonial home. It
should not expose the non applicant to unjust
contempt or other coercive proceedings. On the
other hand, maintenance should not be so low so
as to make the order meaningless. CM(M) No.79/2011              Page 4 of 12

8. Unfortunately, in India, parties do not
truthfully reveal their income. For self
employed persons  or persons employed in
the unorganized sector, truthful income
never surfaces. Tax avoidance is the norm.
Tax compliance is the exception in this
country. Therefore, in determining interim
maintenance, there cannot be
mathematical exactitude. The court has  to
take a general view. From the various
judicial precedents, the under noted 11
factors can be culled out, which are to be
taken into consideration while deciding an
application under Section 24  of the Hindu
Marriage Act. The same are:
1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of
the claimant.
4. The number of persons, the non
applicant has to maintain.
5. The amount should  aid the applicant to
live in a similar life style as he/she enjoyed
in the matrimonial home.
6. Non-applicant's liabilities, if any.
7. Provisions for food, clothing, shelter,
education, medical attendance and
treatment etc. of the applicant.
8. Payment capacity of the non applicant.
9. Some guess work is not ruled out while
estimating the income of the non applicant
when all the sources or correct sources are
not disclosed.
10. The non applicant to defray the cost of
litigation.
11. The amount awarded  under
Section 125 Cr.PC is adjustable against the
amount awarded  under  Section 24 of the
Act.”

(Emphasis Supplied)
 CM(M) No.79/2011              Page 5 of 12

6. In Jayant Bhargava v. Priya Bhargava, 181 (2011) DLT
602,  this  Court  laid down the factors  to be taken into
consideration for ascertaining  the income of the spouse.  The
relevant portion of the judgment is reproduced hereunder:-
“12. It is settled  position of law that a wife is
entitled to live in a similar status as was enjoyed
by her in her matrimonial home. It is the duty of
the courts to ensure that it should not be a case
that  one spouse lives in a life of comfort and
luxury while the other spouse lives a life of
deprivation, poverty. During the pendency of
divorce proceedings the parties should be able to
maintain themselves and should be sufficiently
entitled to be represented in judicial
proceedings. If in case the party is unable to do
so on account of insufficient income, the other
spouse shall be liable to pay the same. (See
Jasbir Kaur Sehgal (Smt.) v. District Judge,
Dehradun and Ors.,  reported at V (1998) SLT
551, III (1997) CLT 398 (SC), II (1997) DMC 338
(SC) and (1997) 7 SCC 7).
13.  A Single Judge of this Court in the case of
Bharat Hegde v. Saroj Hegde, reported at 140
(2007) DLT 16 has culled out 11 factors, which
can be taken into consideration  for deciding the
application under Section 24 of Hindu Marriage
Act.
14. Further it has been noticed by the Courts
that the tendency of the spouses in proceedings
for maintenance is to not truthfully disclose their
true income. However, in such cases some guess
work on the part of Court is permissible.
15. The Supreme Court of India in the case of
Jasbir Kaur (Smt.)  (supra), has also recognized
the fact that spouses in the proceedings for
maintenance do not truthfully disclose their true
income and therefore some guess work on the
part of the Court is permissible. Further the CM(M) No.79/2011              Page 6 of 12

Supreme Court has also observed that
“considering the diverse claims made by the
parties one inflating the income and the other
suppressing an element of conjecture and guess
work does enter for arriving at the income of the
husband. It cannot be done by any mathematical
precision”.
16. Although there cannot be an exhaustive list
of factors, which are to be considered in
guessing the income of the spouses, but the
order based on guess work cannot be arbitrary,
whimsical or fanciful. While guessing the income
of the spouse, when the sources of income are
either not disclosed or not correctly disclosed,
the Court can take into consideration amongst
others the following factors:
(i) Life style of the spouse;
(ii) The amount spent at the time of
marriage and the manner in which
marriage was performed;
(iii) Destination of honeymoon;
(iv) Ownership of motor vehicles;
(v) Household facilities;
(vi) Facility of driver, cook and other help;
(vii) Credit cards;
(viii) Bank account details;
(ix) Club Membership;
(x) Amount of Insurance Premium paid;
(xi) Property or properties purchased;
(xii) Rental income;
(xiii) Amount of rent paid;
(xiv) Amount spent on travel/ holiday;
(xv) Locality of residence;
(xvi) Number of mobile phones;
(xvii) Qualification of spouse;
(xviii) School(s) where the child or children
are studying when parties were residing
together;
(xix) Amount spent on fees and other
expenses incurred;
(xx) Amount spend on extra-curricular
activities of children when parties were
residing together; CM(M) No.79/2011              Page 7 of 12

(xxi) Capacity to repay loan.
17. These are some of the factors, which may be
considered by any court in guesstimating or
having a rough idea or to guess the income of a
spouse. It has repeatedly been held by the
Courts that one cannot ignore the fact that an
Indian woman has been given an equal status
under Articles 14 and 16 of the Constitution of
India and she has a right to live in dignity and
according to the status of her husband. In this
case, the stand taken by the Respondent with
respect to his earning is unbelievable.”
7.  In the facts and circumstances of this case, both the
parties are directed to file their respective affidavits of assets,
income and expenditure from the date of the marriage up to
this date containing the following particulars:-
7.1  Personal Information
(i)  Educational qualifications.
(ii)  Professional qualifications.
(iii)  Present occupation.
(iv)  Particulars of past occupation.
(v)  Members of the family.
(a)  Dependent.
(b)  Independent.

7.2  Income

(i)  Salary, if in service.
(ii)  Income from business/profession, if self employed.
(iii)  Particulars of all earnings since marriage.
(iv)  Income from other sources:-
(a)  Rent.
(b)  Interest on bank deposits and FDRs.
(c)  Other interest i.e. on loan, deposits, NSC, IVP,  KVP,
Post Office schemes, PPF etc.
(d)  Dividends.
(e)  Income from machinery, plant or furniture let on
hire. CM(M) No.79/2011              Page 8 of 12

(f)  Gifts and Donations.
(g)  Profit on sale of movable/immovable assets.
(h)  Any other income not covered above .

7.3  Assets

(i)  Immovable properties:-
(a)  Building in the name of self and its Fair Market
Value (FMV):-
  Residential.
  Commercial.
  Mortgage.
  Given on rent.
  Others.
(b)  Plot/land.
(c)  Leasehold property.
(d)  Intangible property e.g. patents, trademark, design,
goodwill.
(e)  Properties in the name of family members/HUF and
  their FMV.
(ii)  Movable properties:-
(a)  Furniture and fixtures.
(b)  Plant and Machinery.
(c)  Livestock.
(d)  Vehicles i.e. car, scooter along with their brand and
registration number.
(iii)  Investments:-
(a)  Bank Accounts – Current or Savings.
(b)  Demat Accounts.
(c)  Cash.
(d)  FDRs, NSC, IVP,  KVP, Post Office schemes, PPF etc.
(e)  Stocks, shares, debentures, bonds, units and mutual
funds.
(f)  LIC policy.
(g)  Deposits with Government and Non-Government
entities.
(h)  Loan given to friends, relatives and others.
(i)  Telephone, mobile phone and their numbers.
(j)  TV, Fridge, Air Conditioner, etc.
(k)  Other household appliances.
(l)  Computer, Laptop.
(m)  Other electronic gadgets including I-pad etc.
(n)  Gold, silver and diamond Jewellery.
(o)  Silver Utensils.
(p)  Capital in partnership firm, sole proprietorship firm. CM(M) No.79/2011              Page 9 of 12

(q)  Shares in the Company in which Director.
(r)  Undivided share in HUF property.
(s)  Booking of any plot, flat, membership in Co-op.
Group Housing Society.
(t)  Other investments not covered by above items.
(iv)  Any other assets not covered above.

7.4  Liabilities

(i)  OD, CC, Term Loan from bank and other institutions.
(ii)  Personal/business loan
(a)  Secured.
(b)  Unsecured.
(iii)  Home loan.
(iv)  Income Tax, Wealth Tax and Property Tax.

7.5  Expenditure

(i)  Rent and maintenance including electricity, water and
gas.
(ii)  Lease rental, if any asset taken on hire.
(iii)  Installment of any house loan, car loan, personal loan,
business loan, etc.
(iv)  Interest to bank or others.
(v)  Education of children including tuition fee.
(vi)  Conveyance including fuel, repair and maintenance of
vehicle.  Also give the average distance travelled every
day.
(vii)  Premium of LIC, Medi-claim, house and vehicle policy.
(viii)  Premium of ULIP, Mutual Fund.
(ix)  Contribution to PPF, EPF, approved superannuation fund.
(x)  Mobile/landline phone bills.
(xi)  Club  subscription and  usage,  subscription to news
papers, periodicals, magazines, etc.
(xii)  Internet charges/cable charges.
(xiii)  Household expenses including kitchen, clothing, etc.
(xiv)  Salary of servants, gardener, watchmen, etc.
(xv)  Medical/hospitalization expenses.
(xvi)  Legal/litigation expenses.
(xvii) Expenditure on dependent family members.
(xviii)Expenditure on entertainment. 
(xix)  Expenditure on travel including outstation/foreign
  travel, business as well as personal.
(xx)  Expenditure on construction/renovation and
  furnishing of residence/office. CM(M) No.79/2011              Page 10 of 12

(xxi)  Any other expenditure not covered above.

7.6  General  Information regarding Standard of Living
and Lifestyle

(i)  Status of family members.
(ii)  Credit/debit cards.
(iii)  Expenditure on marriage including marriage of family
members.
(iv)  Expenditure on family functions including birthday of the
children.
(v)  Expenditure on festivals.
(vi)  Expenditure on extra-curricular activities.
(vii)  Destination of honeymoon.
(viii)  Frequency of travel including outstation/foreign travel,
business as well as personal.
(ix)  Mode of travel in city/outside city.
(x)  Mode of outstation/foreign travel including type of class.
(xi)  Category of hotels used for stay, official  as well as
personal, including type of rooms.
(xii)  Category of hospitals opted for medical treatment
including type of rooms.
(xiii)  Name of school(s) where the child or children are
studying.
(xiv)  Brand of vehicle, mobile and wrist watch.
(xv)  Value of jewellery worn. 
(xvi)  Details of residential accommodation.
(xvii) Value of gifts received.
(xviii)Value of gifts given at family functions.
(xix)  Value of donations given.
(xx)  Particulars of credit card/debit card, its limit and usage.
(xxi)  Average monthly withdrawal from bank.
(xxii)Type of restaurant visited for dining out.
(xxiii)Membership of clubs, societies and other associations.
(xxiv)Brand of alcohol, if consumed.
(xxv)Particulars of all pending as well as decided cases
including civil, criminal, labour, income tax, excise,
property tax, MACT, etc. with parties name.

8.  Both the parties are also directed to file,  along with
affidavit,  copies of the documents  relating to  their  assets,
income and expenditure  from the date of the marriage up to CM(M) No.79/2011              Page 11 of 12

this date and more particularly the following:-
(i)  Relevant documents with respect to income including
Salary certificate, Form 16A, Income Tax Returns,
certificate from the employer regarding cost to the
company, balance sheet, etc.
(ii)  Audited accounts,  if deponent is running business and
otherwise, non-audited accounts i.e. balance sheets,
profit and loss account and capital account.
(iii)  Statement of all bank accounts.
(iv)  Statement of Demat accounts.
(v)  Passport.
(vi)  Credit cards.
(vii)  Club membership cards.
(viii)  Frequent Flyer cards.
(ix)  PAN card.
(x)  Applications seeking job, in case of unemployed person.

9.  The affidavit  and documents  be filed within a period of
four weeks with an advance copy to opposite parties who shall
file their response within two weeks thereafter.
10.  List for hearing on 9th
 November, 2011.
11.  Both the parties are directed to remain present in Court
on the next date of hearing along with all original documents
relating to their assets, income and expenditure.
12.  This Court appreciates the valuable assistance rendered
by Ms. Prem Lata Bansal, Senior Advocate.
13.  Copy of this order be sent to the Principal District Judge
for being circulated to the concerned judges dealing with
matrimonial cases.

 CM(M) No.79/2011              Page 12 of 12

14.  Copy of this order be given dasti to learned counsels for
both the parties under signature of Court Master. 


            J.R. MIDHA, J
  SEPTEMBER 12, 2011
mk

http://lobis.nic.in/dhc/JRM/judgement/09-11-2011/JRM12092011CMM792011.pdf

http://indiankanoon.org/doc/153453675/

Wife to pay maintenance to Husband under s24 Hindu Marriage Act- Delhi High court

Wife to pay maintenance to Husband under s24 Hindu Marriage Act- Delhi High court

CM(M)NO.169/2009                Page 1 of 14


07.
*  IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

+   CM(M) 169/2009

%           Judgment Delivered on:  31.03.2011

RANI SETHI                                    ..... Petitioner
      Through :  Mr. G.K. Sharma, Adv.

      versus

SUNIL SETHI                                   ..... Respondent
      Through :  Mr. B.P. Singh, Adv.

  CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI

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 in the Digest? Yes

G.S.SISTANI, J. (ORAL)
1.  Present petition is directed against the order dated 24.2.2009
passed by learned Additional District Judge, Delhi, on an application
filed by respondent (husband) under Section 24 of Hindu Marriage
Act,  seeking maintenance from the petitioner (wife). By the
abovesaid order, trial court has directed the petitioner (wife) to pay
maintenance to the respondent (husband) @ `20,000/-, per month,
and `10,000/- as litigation expenses and also to provide Zen Car for
the use of the respondent (husband).
2.  Learned counsel for the petitioner submits that learned trial court
has exceeded its jurisdiction and has erroneously come to a finding
with regard to the income of the petitioner. While it is not in dispute
that petitioner is carrying out the business of running paying guest CM(M)NO.169/2009                Page 2 of 14


hostels in the name of Pradise PG, it is submitted by counsel for the
petitioner that the trial court has failed to consider the expenses of
running the  business  which  includes  providing  the students  with
boarding, lodging and transportation  facilities and the earnings
from the business are barely sufficient to maintain herself and her
two children, whom she is solely supporting. It is further contended
that  the financial condition of the petitioner has been ignored by
the trial court.    Counsel  next  submits that in fact the financial
condition of the petitioner would be evident from the fact that
petitioner is residing in a rented accommodation and is paying rent
@  `12,500/-, per month.  Mr.Sharma  submits that trial court has
completely lost sight of the fact that petitioner has to maintain and
provide for  two unmarried children  – one son, who is 26 years of
age, and a daughter, who is 24 years of age. Counsel next submits
that petitioner has to  not  only  provide for their maintenance  but
also  plan  their  marriages and ensure a secured future for the
children. Besides petitioner has to look after herself. It is further
submitted that petitioner  is medically  unfit and is suffering from
Leucoderma and arthritis  and she has to  spend  on  doctors,
medicines  and other tests.  Copies of medical prescriptions have
been placed on record in support of her contention.
3.  Learned counsel for the petitioner submits that even otherwise the
respondent is an able bodied person and he is in a position to
maintain  himself. Counsel further submits that respondent is CM(M)NO.169/2009                Page 3 of 14


carrying on a business in the name and style of Sethi Contractor
and accordingly the respondent is not entitled to any maintenance.
A copy of the visiting card of Sethi Contractor has been placed on
record.  Stress has also been laid by counsel for the petitioner on
the conduct and character of the respondent. Various instances
have been cited in the present petition by the petitioner to show
that respondent has an immoral character. It is also contended that
learned trial court has relied purely on the guess work to assess the
income of the petitioner and, thus, the impugned order is liable to
be set aside.
4.  Learned counsel for the petitioner submits that petitioner has
subsequently  been able to lay  her  hands on documents to show
that respondent is earning and is able to maintain himself,
however, the documents were neither filed along with this petition
nor the same were filed before the trial court at the relevant time.
However, it is submitted by counsel for the petitioner that an
application has already been moved before the trial court for
modification of the impugned order and the petitioner will rely upon
those documents before the trial court.
5.  Learned counsel for  the respondent submits that  despite the fact
that the business was set up by the respondent and the petitioner
together initially, out of the funds received from selling ancestral
property of the respondent, and the business is making a good
profit, the   trial court has been extremely conservative in granting CM(M)NO.169/2009                Page 4 of 14


only  `20,000/-, per month, as  maintenance, for the respondent.
Counsel further submits that in the affidavit filed by the respondent
on 20.1.2009 before the trial court, the respondent has enlisted the
assets of the business, which are reproduced below:
(a)  300 room on rent fully equipped
and furnished with double bed
18000x300.00
(b)  Taa Bus 1.50 Seaters  54 lacs
(c)  One Tata Winger (9+1)  8 lacs
(d)  Three Maruti Vans  6 lacs
(e)  One Maruti Zen  3 lacs
(f)  One Accent Viva Car  4 lacs
(g)  One Mess kitchen Modular with all
apparatus, uttencils, equipments,
etc. sufficient for 600 inmates
along with all other required
faculties
8 lacs
(h)  One Modern Zim with all
equipments
2 lacs
(i)  One General Store with stock  2 lacs
(j)  One Cyber Café with four
computers and other necessary
equipments
1 ½ lacs
(k)  House-hold articles including
laptop, Fridge, Air Conditioners (3),
Two LCD TVs, etc. Three bed rooms
fully equipped with one drawing
room and kitchen with jewellery
articles common family ornaments,
ancestral, etc. 
20 lacs

6.  It is submitted by counsel for the respondent that a perusal of the
abovementioned assets of the business would show that petitioner
is running a flourishing business. It is further  submitted that the
assets of the business, business investments and other personal
assets owned by the petitioner would give some idea of the status
of the petitioner.  It is next  submitted  that petitioner had filed an
additional affidavit before the trial  court where she had herself
admitted that  she  is running business in the name and style of
Paradise Hostel for the purposes of which she has taken 81 flats in CM(M)NO.169/2009                Page 5 of 14


two societies on rent,  for which she is paying  `5,07,000/- as rent;
`65,800/- as maintenance + electricity and other expenses towards
hostel, bus payments, etc. Petitioner has also  admitted in the
additional affidavit that she is paying `25,000/-, per month, towards
house  keeping;  `48,000/-, per month, towards kitchen  expenses;
`50,000/-  towards the salary of drivers, electrician, plumbers, etc;
`2,50,000/-, per month, towards Hostel‟s Ration, Grocery
Expenditure, for a strength of 386 students. 
7.  Learned counsel for the respondent submits that respondent was
unceremoniously thrown out of his house and it is only by the order
of the court that few articles were returned, which have been
noticed by the trial court in para 12 of its order.  Relevant portion of
which reads as under:
“… an application in the Court for taking his clothes and
chapels lying at  the house of the non applicant and the non
applicant has given only two pairs of pants and shirts, one
kurta paijama, three bainyans, two underwears and one pair
of chappals and two sweaters in the court on 21.1.2009 and
other articles of the applicant mentioned in his application
have not yet been given by the non-applicant/ wife.”

8.  It is next submitted that the respondent tried setting up another
business and starting life afresh.  However, the business was
unsuccessful and the partnership which was entered into for the
purpose of business was dissolved on 1.12.2009.  The respondent
has placed a copy of the dissolution of partnership deed dated
1.12.2009 in support of his contention.    Counsel further submits
that there is no infirmity in the order of the trial court, which would CM(M)NO.169/2009                Page 6 of 14


call for interference in the proceedings under Article 227 of the
Constitution of India.
9.  I have heard counsel for the parties, who have also drawn  the
attention of the Court to various documents placed on record as
also the affidavits filed by both the parties before the trial court. In
this case, the undisputed facts, which emerge, are that marriage
between parties was solemnized on 6.12.1982. A son, who is  at
present  26 years of age, and a daughter, who is  at present  24
years, were  born out of their wedlock. Admittedly, the parties
started residing separately since September, 2006, and thereafter
with the intervention of friends and relations, the  petitioner and
respondent  stayed together for a brief period in  the matrimonial
home,  however, the parties again separated  on 6.9.2008.
Allegation of the respondent is that he was thrown out of the
matrimonial home, which prima facie appears to be correct as few
of his articles were handed over to him on 20.1.2009 in the Court,
as observed by the trial court.
10.  It is settled position of law that the law makes provision to strike a
balance between the standard of living, status and luxuries that
were enjoyed by a spouse in the matrimonial home and after
separation.   It has been held by the Apex Court that the needs of
the parties, capacity to pay etc. must be taken into account while
deciding quantum of maintenance.   CM(M)NO.169/2009                Page 7 of 14


11.  In the case of  Jasbir Kaur Sehgal (Smt.) v. District Judge,
Dehradun & Others, reported at (1997) 7 Supreme Court Cases
7, it has been held as under:
“8.  The wife has no fixed abode of residence. She says she
is living in  a  Gurudwara with her eldest daughter for
safety. On the other hand  the  husband has sufficient
income and a house to himself.  The  Wife has not
claimed any  litigation expenses in this appeal. She is
aggrieved only because of the paltry amount of
maintenance fixed by the courts. No set formula can be
laid for fixing the amount of maintenance. It has, in the
very nature of things, to depend on the facts and
circumstance  of each case. Some scope for liverage
can, however, be always there. Court has to consider
the  status of  the  parties, their respective needs,
capacity  of  the  husband  to pay having regard to  his
reasonable  expenses  for  his own maintenance and  of
those he  is obliged under  the  law and statutory but 
involuntary payments or deductions.  The amount of
maintenance fixed for the wife should be such as she
can live in reasonable comfort considering her status
and the mode of life she was used to when  she lived
with her husband and also that she does not feel
handicapped in the prosecution of her case. At the
same time, the amount so fixed cannot be excessive or
extortionate. In the circumstances of the present case
we fix maintenance pendente lite at the rate of
Rs.5,000/-  per month payable by respondent-husband
to the appellant-wife.”

12.  A Single Judge of this Court in the case of Bharat Hegde v. Saroj
Hegde, reported at 140 (2007) DLT 16, had culled out following 11
factors, which can be taken into consideration for deciding the
application under Section 24 of Hindu Marriage Act, relevant
portion of which reads as under:
8.  Unfortunately, in India, parties do not truthfully reveal
their income. For self employed persons or persons
employed in the unorganized sector, truthful income never
surfaces. Tax avoidance is the norm. Tax compliance is CM(M)NO.169/2009                Page 8 of 14


the exception in this country. Therefore, in determining
the interim maintenance, there cannot be mathematical
exactitude. The court has to take a general view. From the
various judicial precedents, the under noted 11 factors can
be culled out, which are to be taken into consideration
while deciding an application under Section 24 of the
Hindu Marriage Act. The same are:

(1)    Status of the parties.
(2)    Reasonable wants of the claimant.
(3)    The independent income and property of the
claimant.
(4)    The number of persons, the non applicant has to
maintain.
(5)    The amount should aid the applicant to live in a
similar life style as he/she enjoyed in the
matrimonial home.
(6)    Non-applicant‟s liabilities, if any.
(7)    Provisions for food, clothing, shelter, education,
medical attendance and treatment etc. of the
applicant.
(8)    Payment capacity of the non-applicant.
(9)    Some guess work is not ruled out while
estimating the income of the non-applicant when all
the sources or correct sources are not disclosed.
(10)  The non-applicant to defray the cost of litigation.
(11)  The amount awarded under Section 125, Cr.P.C. is
adjustable against the amount awarded under
Section 24 of the Act.


13.  The Supreme Court of India in the  case of  Jasbir Kaur (Smt.)
(supra), has also recognized the fact that spouses in the
proceedings for maintenance do not truthfully disclose their true
income and therefore some guess work on the part of the Court is
permissible. Further the Supreme Court  has also observed that
“considering the diverse claims made by the parties one inflating
the income and the other suppressing an element of conjecture
and guess work does enter for arriving at the income of the
husband. It cannot be done by any mathematical precision”. CM(M)NO.169/2009                Page 9 of 14


14.  Further in a recent decision the Apex Court in Neeta Rakesh Jain
v. Rakesh Jeetmal Jain  reported at AIR 2010 SC 3540, has laid
guidelines which the courts may keep in mind at the time of fixing
the quantum of maintenance.
“In other words, in the matter of making an order for interim
maintenance, the discretion of the court must be guided by
the criterion provided in the Section, namely, the means of
the parties and also after taking into account incidental and
other relevant factors like social status; the background from
which both the parties come from and the economical
dependence of the petitioner. Since an order for interim
maintenance by its very nature is temporary, a detailed and
elaborate exercise by the court may not be necessary, but, at
the same time, the court has got to take all the relevant
factors into account and arrive at a proper amount having
regard to the factors which are mentioned in the statute”.

15.  While, in this case, petitioner has placed copies of income tax
returns for  the assessment years 2007-2008 on record, a copy of
balance sheet as on 31.3.2007 as also a copy of Profit and Loss
Account for the year ended as on 31.3.2007, have also been placed
on record. The Profit and Loss Account of the guest house of the
petitioner reads as under: 
“PARADISE PG HOUSE
PROP. MRS. RANI SETHI
B-75, DUGGAL COLONY
KHANPUR, NEW DELHI – 110062

  PROFIT & LOSS ACCOUNT FOR THE YEAR ENDED ON 31.03.2007

PARTICULARS  AMOUNT  PARICULARS  AMOUNT
To Establishment  695900.00  By Receipts  8380178.00
To Rent for Flats  3191660.00    
” Mess Expenses  1521958.00    
” Electricity & Water  295800.00    
” Bank Charges  39870.63    
” Staff Welfare  51270.00    
” Transportation  478756.00    
”Telephone Expenses  229234.00    
” Vehicle Running & Maintenance  252859.93    
” Hire Charges  121000.00     CM(M)NO.169/2009                Page 10 of 14


” Bedsheets & Lined  152540.00    
” Medicines & Doctor‟s Fee  24128.00    
” Printing & Stationery  42190.00    
” Travelling & Conveyance  44262.00    
” Insurance  15078.00    
” Misc. Expenses  37383.00    
” Security Expenses  164500.00    
” Repair & Maintenance   286856.00    
” Interest on Car Loan Amount
Written Off
24571.72    
” Amount written Off      
” Audit Fee   23697.00    
” Depreciation  16200.00    
” Net Profit transferred to Capital  191222.07    
  8380178.00    8380178.00

16.  A perusal of the Profit and Loss Account shows that this business is
incurring a profit of `83,80178/- for the year ending on 31.3.2007. 
17.  The affidavits filed by both the petitioner and the respondent
before the trial court also unfold the details of the business, which
was initially being carried out by both the petitioner and the
respondent and subsequently admittedly by the wife  along.
Relevant portion of the affidavit of the respondent reads as under:
“Affidavit of Sunil Sethi s/o late J.N. Sethi R/o A-43, Street No.10, Madhu
Vihar, I.P. Extension, Delhi-110092 (however presently without any
accommodation).


I the above-named deponent do hereby solemnly affirm on oath and state
as under:-

1.   I say that being petitioner in the above mentioned case, I am
entitled to swear the present affidavit.

2.  I say that the respondent is proprietor of M/s Paradise P.G. House
Informative Society, Sector-VI, Greater Noida, (U.P.).

3.  That the said firm established by me and started with the capital
investment of Rs.8,00,000/-  in  the year of 2003 which I had got
from my share in my ancestral/parental property.

4.  I say that the total asset of the said firm owned by the respondent
is about Rs.1,00,000/-  approximately.  This assessment is dated
05.09.08 when I forced to leave the business.

5.  I  say  that asset of  the  respondent’s  firm as on 05.09.08 were as
under:-

S.  Particulars  Approx. CM(M)NO.169/2009                Page 11 of 14


No.    value
 (in Rs.)  
  
1.    300 room on rent fully equipped and
furnished with double bed

18000x300.00
54 lacs
2.    Tata Bus 1.50 Seaters

17 lacs
3.    One Tata Winger (9+1 seater)

8 lacs
4.    Three Maruti Vans

6 Lacs
5.    One Maruti Zen

3 Lacs
6.    One Accent Viva Car

4 lacs
7.    One Mess Kitchen Modular with all
apparatus, utensil, equipments etc.
sufficient for 600 inmates along with all
other required facilities

8 lacs
8.    One Modern Zim with all equipments 

2 lacs
9.    On General Store with stock

2 lacs
10.   One Cyber Cafe with four computers
and other necessary equipments

1 ½ lacs
11.   House-hold articles including Laptop,
Fridge, Air Conditions (3), Two LCD TVs
etc.  Three bed rooms fully equipped
with one drawing room and kitchen with
jewellery articles common family
ornaments, ancestral etc.
20 lacs

6.  I say that on 05.05.08, the liability over the firm namely M/s Paradise
was namely Rs.15,00,000/- approx.”

18.  The petitioner herein also filed her affidavit before the trial court. 
Affidavit of petitioner reads as under:
“I, Rani Sethi w/o Mr. Sunil Sethi r/o Rajdhani Nikunj, Plot no.94, I.P.
Extension, Patparganj, Delhi do hereby solemnly affirm on and declare as
under:

A.  ………

B.  That following are the details of the monthly expenditure incurred by
me in my business of running Paradise Hostel.

i.  That I have hired on rent 50 and 31 flats respectively in two
societies namely informatics and Khushboo whose details
are as follows:

  Rent of Flats  Maintenance   Electricity Bills
Informatics   Rs.2,59,000/-  Rs.34,800/-  +Electivity Bills
Khusboo  Rs.2,48,000/-  Rs.31,000/-  +Electivity Bills CM(M)NO.169/2009                Page 12 of 14


Total Rent  Rs.5,07,000/-  Rs.65,800/-  +Electivity
Bills


C.  That the expenditure incurred and the monthly installments due for
the following are as under:

Hotel Bus  EMI-22,216/-  PER per month + 9 Lakh
invested in Bus down payment.
Winger’s  EMI-10,450/-  per month + 2,60,000/-
down payment
Viva’s  EMI-10209/- per month
Zen’s  EMI-10,540/- per month
Van’s  EMI-17,365/- per month
Total  EMI-71,365/- per month


D.  Staff Salary –   Home Keeping   25,000/- per month

Kitchen    48,000/- per month

Drivers and electrician 

  Total Salary of Staff            1,23,000/- per month
  
Hostel’s Ration + Grocery Exp.+ Snacks  item etc. 2,50,000/- per month
for 386 strength of students
Maintenance Exp.        30,000/- per month
Diesel for Bus         25,000/- per month
Diesel for Generator- Informatics     38,800/- per month
            Khushboo    19,400/- per month
House rent          12,500/- per month
House Maintenance             15,000/- per month+Electricity bill
Transport charge of hostel      27,000/- per month
Three buses on hire     

E.  That it is also submitted that session starts in August of every month.”


19.  Taking into consideration the documents, which have been filed on
record of this court and the affidavit of the petitioner,  the balance
sheet, the Profit and Loss Account of the guest house and the
income and expenditure of the guest house,  it is clear that the CM(M)NO.169/2009                Page 13 of 14


petitioner has a substantial income from the business, which was at
one time started jointly by both the petitioner and the respondent.
The purpose of section 24 of Hindu Marriage Act is to provide
support to a spouse who has no independent source of income and
is incapable of maintaining himself/herself. It is trite law that the
term  „support‟  is not to be construed in a narrow manner so as to
mean bare subsistence. It means that the other spouse, who has no
independent source of income,  is provided with such maintenance
so as to live in  a similar status as was enjoyed by  them  in  their
matrimonial home.   It is the purpose of section 24 that the wife or
the husband who has no sufficient source of income for her or his
support or for the expenses of the proceedings must be provided
with such reasonable sum that strikes equity between the spouses.  
20.  Taking into consideration  the facts of this case and  the settled
position of law,  I am of the view that learned trial court has
correctly considered the relevant factors and has also rightly relied
upon the judgments of this court as also the Apex Court. I find no
infirmity in the order dated 24.2.2009, which requires interference
by this court in the proceedings under Article 227 of the
Constitution of India. Accordingly, present petition is without any
merit and the same is dismissed.
21.  Interim order dated 4.3.2009 stands vacated. All arrears shall be
cleared by the petitioner within a period of three months from
today, which shall be paid by the petitioner to the respondent in CM(M)NO.169/2009                Page 14 of 14


equal installments and the first installment shall be paid by the
petitioner within 15 days from today.
CM NO.3129/2009 (STAY).
22.  Application stands dismissed in view of the orders passed in the
petition. 

G.S. SISTANI, J.
March 31, 2011
'msr‟

http://lobis.nic.in/dhc/GSS/judgement/05-05-2011/GSS31032011CMM1692009.pdf
 

Venomous irony that the vengeance which was caused in one day between the parties was nurtured by them for three decades

Venomous irony that the vengeance which was caused in one day between the parties was nurtured by them for three decades - HC

Delhi High Court

Smt.Kamlesh Kumari vs Shri Mehtab Singh on 16 January, 2012

IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 17.03.2011
Judgment delivered on: 16.01.2012
+ FAO 291/1996
Smt.Kamlesh Kumari ......Appellant. Through: Mr.Sanjay Kumar Pathak, Advocate.
Vs.
Shri Mehtab Singh ......Respondent Through: Mrs.Mala Goel with Mr.Yashpal Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
KAILASH GAMBHIR, J.
1. By this appeal filed under Section 28 of the Hindu Marriage Act, the appellant-wife seeks to challenge the impugned judgment and decree dated 18.07.1996 passed by the learned trial court whereby the divorce petition filed by the husband, respondent herein under Section 13 (1) (ia) and FAO 291/96 Page 1 of 34
(ib) of the Hindu Marriage Act was allowed by the court and the marriage between the parties was dissolved.
2. A conspectus of facts based on which the respondent filed the divorce petition are that the respondent got married to the appellant according to Hindu rites and ceremonies on 30.06.1982 at Delhi. It is stated that after the marriage on 01.07.1982, the parties went to the house of appellant‟s parents at Yusuf Sarai and had lunch there and thereafter the appellant‟s parents did not send the appellant back along with the respondent and the appellant also declined to accompany him without any reason or justification. It is further stated that on 11.07.1982, the respondent again went to the house of the appellant‟s parents to bring her back and requested her parents to send the appellant along with him but they refused to do so without disclosing any reason. It is further averred that after 15 days i.e. in the last week of July, 1982 the respondent again went to the house of appellant‟s parents to bring her back, however, after reaching there it was found that the appellant FAO 291/96 Page 2 of 34
was not present at her parents‟ house at that time and on persistent enquiries by the respondent her parents told him that the appellant had gone to the house of her sister‟s husband(jija) Shri Umed Singh at Village Nilothi, Nangloi, Delhi. Thereafter about a month of the marriage of the parties i.e. on or about 30.7.82/1.8.82/2.8.82 father of the respondent called said Shri Umed Singh to his village Sultanpur Majra where the respondent, his elder brother and two uncles were also present where Shri Umed Singh blamed father of the appellant for telling a lie that the appellant was with him at the time when the respondent visited her parents‟ house to bring her back to matrimonial home. In the evening of 21.08.82, one Shri Kalam Singh and Shri Sri Lal went to the house of Shri Umed Singh at Village Nilothi and found that the appellant was very much there and thus the fact of the appellant living with Shri Umed Singh without the consent or permission of the respondent was confirmed by them. The next day the respondent and his mother also went to the house of Shri Umed Singh at 6 p.m and found the appellant FAO 291/96 Page 3 of 34
present there and when the respondent and his mother tried to reason out from the appellant as to why she was living with Shri Umed Singh, then she replied that it was her sweet will to go anywhere. This fact was also enquired from Shri Umed Singh in the presence of the appellant and he said that the appellant was his sister-in-law and he had every right over her and that she had come to him with her own will. Despite the request of the respondent and his mother, the appellant did not accompany them to return to her matrimonial home and remained there. It is also stated that in the year 1983-84, the appellant filed a report with the Social Welfare Board, which called Shri Umed Singh, Shri Mohinder Singh and the appellant‟s maternal uncle Shri Gian Singh and her brother from the appellant‟s side and from the respondent‟s side the respondent and his parents were called and on enquiry made by the Welfare Board, it was found that the appellant was living with her brother-in-law (jija) Shri Umed Singh and there was no fault of the respondent and as such reconciliation efforts made by the Board could not take place between the FAO 291/96 Page 4 of 34
parties. It is also averred that the appellant taunted the respondent as the educational qualification of the appellant was graduate whereas the respondent is a matriculate, which caused cruelty to him. It is also stated that the appellant left the matrimonial home with the intention not to return again, whereas the respondent had made efforts for reconciliation. The parties are stated to be living separately since 1.7.82 and the appellant has deserted the respondent from the first day of marriage without any reasonable cause. The appellant has even not made any efforts to come back to the matrimonial home as she has been staying with her brother-in-law (jija).
3. The appellant in her written statement however, admitted the factum of her marriage with the respondent on 30.6.82 but denied the allegation of cruelty and desertion. The appellant has leveled allegation that the respondent and his parents used to taunt her on account of bringing insufficient dowry and that the main demand of the respondent was a two-wheeler scooter which was not met by the appellant‟s parents. It is also alleged that the brother of FAO 291/96 Page 5 of 34 the appellant who had come to take the appellant on 5.7.82 was humiliated, taunted and was coerced to part with the two-wheeler scooter on which he had come to take her back and the respondent and his parents warned the brother of the appellant that in case the scooter was not arranged at the earliest the appellant may not be sent to her matrimonial home and the respondent would also not come to take her back. It is also alleged that thereafter i.e 5.7.82 the respondent never came to take her back. It is denied that the appellant was ever living with her brother-in-law (jija) Shri Umed Singh or that the respondent and his mother ever went to the house of said Shri Umed Singh on 22.8.82 or that the appellant was present in the house of Shri Umed Singh on that day. It is stated that the appellant was forced to make report to Anti Dowry Cell of Delhi Police which report of her was referred by the Anti Dowry Cell to the Social Welfare Board. The factum of summoning of persons from both sides is admitted by the appellant, however, it is denied that the Social Welfare Board held in its enquiry that the appellant FAO 291/96 Page 6 of 34
was living with her brother-in-law (jija) Shri Umed Singh or that there was no fault of the respondent. It is asserted that the respondent flatly refused before the said Board to bring the appellant back to the matrimonial home. It is alleged that it was the appellant who had been deprived by the respondent and had caused mental agony and torture to her by not taking her to the matrimonial home for demand of two wheeler scooter and other articles. It is also stated that on an application made by the appellant to the Anti Dowry Cell the case was proceeded against the respondent and the Anti Dowry Cell came to the conclusion that it was a fit case for investigation and accordingly a case was registered against the respondent for demanding dowry and the respondent and his family members were arrested by the police, but subsequently were enlarged on bail. It is also alleged that it is the respondent who had deserted the appellant since 5.7.82 and had not bothered to take her back to the matrimonial home for his greed of dowry and did not allow her to enter the matrimonial home in spite of repeated panchayat meetings FAO 291/96 Page 7 of 34
between the parties, their relatives and respectable persons of the village. It is also stated that the appellant has been forced to live with her parents since 5.7.82 due to greed/demand of dowry by the respondent.
4. Based on the above pleadings of the parties, the learned trial court framed the following issues:-
"(i) Whether after solemnization of marriage, the respondent treated the petitioner with cruelty? OPP (ii) Whether the respondent has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petition.
(iii) Whether the petition is not in accordance with rules? If so, its effect?
(iv) Relief."
5. In support of his case, the respondent examined himself as PW-1 besides examining Shri Maya Ram @ Mahe Ram as PW-2 and Shri Ram Swarup as PW-3. The appellant, on the other hand, examined herself as RW-1, besides examining Shri J.B.Gupta as RW-2, Shri Gian Singh (appellant‟s brother) as RW-3 and Shri Mahinder Singh as RW-4.
FAO 291/96 Page 8 of 34
6. On issue Nos.1 and 2, the learned trial court returned a finding against the appellant and in favour of the respondent husband and thus dissolved the marriage of the parties by the decree of divorce dated 18.7.1996, feeling aggrieved by which the appellant has preferred the present appeal.
7. Assailing the impugned judgment and decree, Mr.Sanjay Kumar Pathak, learned counsel for the appellant submitted that sufficient efforts were made by the appellant to join back the company of the respondent at the matrimonial home and it was the respondent who remained reluctant to allow the appellant to join back his company and, therefore, the respondent cannot be allowed to take advantage of his own wrongs. Counsel further submitted that the learned trial court committed a grave illegality in drawing adverse inference of her statement during her cross-examination where she stated that the respondent-petitioner never came to take her from her parents house after 02.07.1982 to mean as if she had stayed at her parents‟ house after 02.07.1982 in contradiction to her claim of staying at the matrimonial home FAO 291/96 Page 9 of 34
till 05.07.1982. The contention of counsel for the appellant was that this date has been mentioned by the appellant in her cross-examination to explain that the respondent in fact had never visited her parents‟ house to bring her back after 02.07.1982. Counsel also submitted that the said deposition of the appellant could not have been read by the learned trial court in isolation as the same was to be read in conjunction with her earlier statement wherein she took a stand that she had taken a lunch at her parental house on 02.07.1982 and she also denied the suggestion in her cross-examination about the alleged visit of the respondent to take her back on 11.07.82 or on that date the parents of the appellant had refused to send her along with the respondent. Counsel for the appellant further submitted that the respondent had duly admitted in his evidence that the marriage between the parties was consummated on the night between 02.07.82 and 03.07.82, but at the same time took a contrary stand by alleging that the appellant never lived with him from 01.07.82. Counsel also submitted that the respondent took a FAO 291/96 Page 10 of 34
contrary stand of his alleged visit on 11.07.82 to the parents house of the appellant, as in the proceedings under Section 125 Cr.P.C. the respondent alleged such visit on 08.07.82 instead of 11.07.82. Counsel further submitted that the respondent had showed his reluctance to bring the appellant back to the matrimonial home before the Social Welfare Board. Counsel further submitted that the respondent had even admitted the visit of Mr.Bharat Singh, Counsellor at that time for the purpose of reconciliation and also the visit of the workers of the Social Welfare Board for the same purpose. Counsel also submitted that the appellant was not cross- examined by the respondent to contradict the deposition in her examination-in-chief wherein she stated that on 02.07.82 the marriage was duly consummated between the parties. Counsel also submitted that even no suggestion was given by the respondent to suggest that the appellant did not stay at her matrimonial home till 05.07.82 or no Panchayat took place at the instance of the appellant or the appellant and her parents did not make any efforts after 05.07.82 for her to go FAO 291/96 Page 11 of 34
back to the matrimonial home. Counsel further argued that the appellant had duly proved on record that she was never found at the residence of her brother-in-law (jija) Mr.Umed Singh at Nilothi. Counsel also argued that the decree of divorce cannot be granted on the ground of irretrievable breakdown of marriage which is not a ground under Section 13 of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the following judgments:-
(i) Subhash Chander Sharma Vs. Anjali Sharma 2010(174) DLT 564 (ii) Suram Pal Singh Vs. Savita 2007(140) DLT 198 (iii) Krishan Kumar Vs. Shankari 2007(142) DLT 177
9. Opposing the present appeal, Ms.Mala Goel, learned counsel appearing for the respondent submitted that no fault can be found with the findings given by the learned trial court in granting the decree of divorce under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act. In support of her arguments, counsel submitted that the appellant had deserted the respondent on 01.07.82 with the intention to break the marriage permanently. Counsel further submitted that the FAO 291/96 Page 12 of 34 respondent had sufficiently proved on record that the appellant was staying with her brother-in-law Shri Umed Singh at his residence at Nilothi. Counsel also argued that the appellant miserably failed to prove on record that any demand of scooter was made by the respondent or his parents. Counsel further submitted that in criminal proceedings, the appellant also alleged that the demand of Rs.30,000/- was made by the respondent along with the scooter which was not the defence set up by her in the proceedings before the matrimonial court and such contradictory stands of the appellant would clearly establish her false claim of setting up defence of demand of scooter made by the respondent or his parents. Counsel further submitted that no attempts were made by the appellant to join back the company of the respondent at the matrimonial home and instead she had approached the Anti-Dowry Cell so as to falsely implicate the respondent and his family members to face the criminal proceedings. In support of her arguments, counsel for the FAO 291/96 Page 13 of 34
respondent placed reliance on the judgment of this Court reported in Vimal Kanta Vs. J.M.Kohli176 (2011) DLT 527.
10. I have heard learned counsel for the parties at considerable length and given my thoughtful consideration to the arguments advanced by them.
11. The marriage which was solemnized between the parties on 30.06.82 turned ruinous within a short period of 24 hours as per the respondent and 5 days as per the appellant. As per the respondent-petitioner, the appellant did not return back with the respondent on 01.07.82 when she was taken by the respondent to her parental house. As per the respondent, no reasons were advanced either by the appellant or her parents for not sending back the appellant with the respondent to the matrimonial home. In para 4 (B) of the petition, the respondent averred as under.
"4(B). That on 1st of July, 1982, the petitioner and the respondent went to the respondent's parents house at Yusuf Sarai and had lunch there. The parents of the respondent did not send the respondent alongwith the petitioner. The respondent too declined to come alongwith her husband- petitioner without any reason and justification. Therefore, FAO 291/96 Page 14 of 34 the petitioner-husband returned back to his residence having been disappointed by the respondent's conduct." As per the respondent despite making efforts to bring back the appellant, the appellant did not return and therefore, the respondent filed a petition for divorce under section 13(1)(ia) and (ib), i.e cruelty and desertion which vide order dated 18.7.1996 was decreed in his favour.
12. To claim a decree on the ground of desertion as envisaged in section 13(1)(ib) of the Hindu Marriage Act the ingredients that need to be proved , so far as the deserting spouse is concerned it is (i) factum of separation, (ii) the intention to bring cohabitation permanently to an end i.e animus deserdendi, and so far deserted spouse is concerned, (i) absence of consent and (ii) the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. It is also a settled legal position that desertion commences when the factum of desertion and the animus deserendi co-exist. However, it is not necessary that these two conditions should commence at FAO 291/96 Page 15 of 34
the same time as the de facto separation may commence earlier in point of time without the necessary animus and the necessary animus may arise later in point of time and then coincide with the factum of separation. Desertion has no straitjacket formula and in each case an inference has to be drawn from the facts of the case. It is the intentional and permanent forsaking of one spouse by the other without others consent, and without reasonable cause. This was held by the Apex Court in the case of Bipin Chander Vs. Prabhawati AIR 1957 SC 176. Along with explaining the essential conditions which constitute desertion as a ground for divorce, the Apex Court in the case of Lachman UtamChand Kirpalani vs. Meena Alias Mota (1964) 4 SCR 331 while reiterating Bipin Chander(supra) held as under:
" It would be seen that we have here the interaction of two distinct matters which have to co-exist in order that desertion might come to an end. In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to have regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse FAO 291/96 Page 16 of 34 should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where, however, on the facts it is clear that the conduct of the deserted spouse had had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse. It appears to us that the principle that the conduct of the deserted spouse which is proved not to have caused the deserting spouse to continue the desertion does not put an end to the desertion appears to be self-evident and deducible from the legal concepts underlying the law as to desertion." Thus it is clear from above, that the deserting spouse should have deserted the other spouse without his consent and without being there any just and reasonable cause. In a case of desertion by the deserting spouse there should be reasons sufficient enough for such spouse not to reconcile with the deserted spouse. But where the deserting spouse withdraws not only physically from the marriage but also from the society of the deserted spouse without any reasonable cause, the ground of desertion shall be available to the deserted spouse.
13. Now applying the aforesaid principles of law to the facts of the case at hand, the appellant ceased to live with the appellant from 1.7.82 and as per the appellant from 5.7.82. However it is immaterial as to the date of separation as it is FAO 291/96 Page 17 of 34 not in dispute that the parties did not live together thereafter till the presentation of the petition and thus the essential condition that the parties must be living for two years separately before the presentation of the petition stands fulfilled. Thus the first ingredient of the factum of separation stands fulfilled.
14. Coming to the next ingredient which is the animus desrendi, i.e the intention of the appellant to bring the cohabitation permanently to an end. As per the respondent petitioner the appellant did not return back from her parental house on 1.7.82 and the parents of the appellant also refused to send her back without any justifiable cause. As per the respondent, he again on 11.07.82 went to the parents house of the appellant to take her back but again the parents of the appellant refused to send her back with the respondent. After a gap of 15 days i.e. in the last week of July, 1982 another attempt was made by the respondent, but this time the appellant was found not present at her parents house and he was told by the parents of the appellant that she had gone to FAO 291/96 Page 18 of 34
her brother-in-law Mr.Umed Singh at village Nilothi. After having learnt this fact, the father of the respondent had called Mr.Umed Singh on or about 30.07.82 when in the presence of Shri Daryao Singh, Shri Mohinder Singh, Shri Hanumant Singh and Shri Sri Lal, uncles of the respondent besides his family members, Shri Umed Singh blamed his father-in-law and informed them that the appellant was not staying with him and in fact she was with her parents. As per the respondent in the first week of August, 1982, the father of the respondent again informed him that the appellant was living with Mr.Umed Singh and acting on this information, Shri Kalam Singh and Shri Sri Lal visited the residence of Shri Umed Singh at village Nilothi on 21.08.82. As per the respondent, on the next day, he along with his mother went to Shri Umed Singh‟s house, but the appellant refused to accompany the respondent. On being enquired by the respondent and his mother the reason as to why she was at the residence of Mr.Umed Singh, then she replied that it was her sweet will to go anywhere. As per the respondent, even FAO 291/96 Page 19 of 34
Mr.Umed Singh also told them that the appellant is his sister- in-law and he has every right over her and she has come there at her own will. No further efforts were made by the respondent to bring back the appellant and in the year 1983- 84 the appellant filed a report with the Social Welfare Board and despite the intervention of the Members of the said Board no reconciliation could take place between the parties. As per the respondent, the appellant had also taken all ornaments with her on 01.07.82 and in this manner, the appellant deserted him since 01.07.82 and the repeated refusal of the appellant not to return back and the continued stay with her brother-in-law caused mental cruelty to him.
15. The appellant, on the other hand, in her written statement took a defence that she was never taken back to her parents‟ house on 01.07.82. As per the appellant, she was brought to the parents house around 4 p.m on 02.07.82 and she returned back with the respondent after having taken dinner at the parental home at about 9 p.m. It is also the case of the appellant that on 02.07.82 the respondent was FAO 291/96 Page 20 of 34
accompanied by his cousin named Ajit Singh and they travelled back in the same taxi which brought them to the parents house and on their way back, the respondent and his cousin and the taxi driver consumed liquor for about one hour and then ultimately they reached back at the matrimonial house around 11:30 p.m It is also the case of the appellant that the marriage had already been consummated on 01.07.82 and the respondent cohabitated with the appellant upto 04.07.82. It is also the case set up by the appellant that on 05.07.82 in the morning her brother Gian Singh came to take her to the parents house in accordance with the customs. It is also the case of the appellant that her brother was humiliated, taunted and coerced to part with the two-wheeler scooter on which he had come with the appellant on 05.07.82. It is also the case of the appellant that she was not allowed to live peacefully by the parents of the respondent and also the respondent himself during the said short period between 30.06.82 till 04.07.82, during which time all of them kept taunting and cursing the appellant and her parents for not FAO 291/96 Page 21 of 34
bringing sufficient dowry in the marriage. It is also the case of the appellant that on 04.07.82 the respondent and her mother took in possession all the ornaments which were presented to her from both the sides. It is also the case of the appellant that the respondent never came to take her back after she had left the matrimonial home on 05.07.82 along with her brother. The appellant also denied that she was ever living with her brother-in-law Umed Singh at village Nilothi. The appellant also denied that her brother-in-law was ever called by the father of the respondent at Sultanpur Mazra or Shri Sri Lal and Shri Kalam Singh ever paid visit to the house of the appellant or at the house of Shri Umed Singh at Nilothi or the respondent and his mother found the appellant present at the house of Shri Umed Singh on 22.08.82. The appellant also submitted that the divorce petition filed by the respondent was in fact a counter blast to the complaint filed by the appellant with the Anti-Dowry Cell. The appellant also took a stand that a criminal case was registered against the respondent, father, mother, brother, sister and uncle of the FAO 291/96 Page 22 of 34
respondent and they were arrested by the police for committing offences under Section 498-A/406 IPC and later on were enlarged on bail. The appellant in the written statement also took a plea that her parents and Shri Umed Singh received messages through one Shri Bhagwan Singh who was a mediator for arranging the said marriage regarding the demand of a two-wheeler scooter made by the respondent and his parents. In the background of the said facts, the appellant in her written statement submitted that since 05.07.82 she was deserted by the respondent and no efforts were made by the respondent to take her back even despite repeated panchayat meetings and efforts made by the area MLA Shri Bharat Singh.
16. Based on the above pleas of the parties, the learned trial court held that no such conduct of the respondent was proved on record which could have compelled the appellant to leave the matrimonial home. The learned trial court further found that based on the evidence led by the respondent it was sufficiently proved on record that repeated efforts were made FAO 291/96 Page 23 of 34
by the respondent to visit the house of the appellant to bring her back. The learned trial court further found that even the parents of the respondent had gone to the house of Shri Umed Singh and even Shri Umed Singh was called to their Village to be told not to keep the appellant with him and send her back to the respondent being her legally wedded wife. The learned trial court also found that the respondent and his mother went to the house of Shri Umed Singh in Nilothi so as to persuade the appellant to return to the matrimonial home but with no result. The learned trial court further found that the appellant did not examine Smt.Prem and Shri Umed Singh who were very material witnesses to deny the version of the respondent about stay of the appellant at Umed Singh‟s place, therefore, adverse inference was drawn against the appellant. The learned trial court although found that the appellant failed to prove that she had been living apart from the respondent since 05.07.1982, but in any case the learned trial court also found that no effort was made by the appellant or her family members to send her back to the matrimonial home FAO 291/96 Page 24 of 34
even if the date of her returning back to the matrimonial home on 05.07.1982 is taken as correct. The learned trial court observed that as per ordinary course of human behaviour even if the respondent had not come to take her back after few days, then certainly the appellant could have gone back to the matrimonial home herself or her parents should have taken her to the matrimonial home with a view to rehabilitate her in the matrimonial home. With regard to the alleged stand of the appellant that some meetings were held with the members of the Panchayat, the learned trial court found that the allegations in this regard were absolutely vague and the same could not be proved by the appellant.
17. The learned trial court has examined the evidence adduced by both the parties in detail and has given an extensive judgment holding the respondent husband entitled to the decree of divorce. On examining the evidence adduced by both the parties, it is quite manifest that the appellant has miserably failed to disclose any reasons, much less the justifiable reasons for bringing the cohabitation with the FAO 291/96 Page 25 of 34
respondent permanently to end. The learned trial court has not believed the case of the appellant that any demand of two wheeler scooter was made by the respondent or his parents, or the appellant and her brother were told not to send the appellant till the said demand of two wheeler scooter is fulfilled by the appellant and her parents. The learned trial court also referred to the contradictory pleas raised by the appellant in her written statement and in her evidence as well as the stand taken by her in the criminal case wherein the demand of two wheeler scooter, monetary demand of Rs.30,000/- was also alleged to have been made by the father of the respondent at the time of „bidha‟ ceremony. The trial court further found that the allegation leveled by the appellant in the written statement with regard to the alleged demand of dowry are not very clear and specific as very vaguely the appellant in para 4 (b) of the written statement took a stand that during the period i.e. 30.6.82 to 4.7.82 she was not allowed to live peacefully by the respondent and his parents as they kept on taunting and cursing her and her FAO 291/96 Page 26 of 34
parents as they were not satisfied with the dowry given by her parents at the time of marriage. The trial court also found that it was not the case of the appellant either in the written statement or in the evidence that she was forcibly turned out of the matrimonial house thereafter. The trial court also observed that the appellant failed to prove the exact dates, months or years as to when the alleged panchayat‟s meetings took place so as to resolve the conflicts of the parties. The trial court also observed that the appellant has not filed any record to prove any copy of complaint/report of the proceedings of the Anti Dowry Cell or the Social Welfare Board where she had made her first complaint, so as to prove any efforts made by the appellant for reconciliation of the dispute with the respondent.
18. In my considered view, no fault can be found with the said findings of the learned trial court. The appellant has nowhere in her written statement or evidence asserted or claimed that she made efforts to go back to her matrimonial home or her parents tried to send her back. It is surprising FAO 291/96 Page 27 of 34
that the parents of a daughter who has just been married for a day would not want to send her back or at least make any effort to send her back. The appellant has also not been able to prove that the in laws demanded a two wheeler or Rs.30,000 or in any manner taunted her for bringing insufficient dowry. It is surprising that with the marriage on 30.6.82 and the appellant going to the parental house on 1.7.82, where was the opportunity for the in laws to taunt her for getting insufficient dowry or she could be so seriously troubled with their conduct that she decided not to come back forever. The appellant laid much stress on the fact that the respondent refused to take her back when there were reconciliation proceedings before the Social Welfare Board. It is not surprising that the respondent reacted in the irresponsive manner, as the reconciliation proceedings were started after the appellant filed a complaint with the anti- dowry cell accusing her in laws of a criminal offence, and thereafter getting them arrested for offence under section 498-A/406 IPC, which would have naturally antagonized the FAO 291/96 Page 28 of 34
respondent to take her back. It is also the case of the appellant that the marriage of the parties had already been consummated on 1.7.82, while this fact has been disputed by the respondent who has deposed that as per the customs prevailing in their family the marriage is not consummated on the first night. It is immaterial of whether the marriage was consummated or not or as to when it was consummated as the appellant has maintained the stand that she has lived with the respondent till 5.7.82. The relevant question to be examined in the facts of the case as to whether the appellant had left the matrimonial home with an intention to permanently bring cohabitation to an end and secondly whether there was a reasonable cause on the part of the appellant to leave the matrimonial home due to the conduct of the respondent. As already discussed above, the appellant has failed to justify her conduct for not returning back to the matrimonial home, despite repeated efforts made by the respondent. The learned trial court has also not believed the theory of demand of two wheeler scooter put forth by the appellant on account FAO 291/96 Page 29 of 34
of inconsistency raised by the appellant in her pleadings and in her evidence and also because of divergent stand taken by her in the criminal case filed by her under Sections 498A and 406 IPC. It is true that the deserted spouse must establish on record that sufficient efforts were made by him to bring the deserting spouse to the matrimonial home but it is equally true that the deserting spouse cannot be expected to sit back at the parental home for no justifiable grounds and not to return back to the matrimonial home. Neither in the written statement nor in the evidence the appellant has shown making any such efforts to return back to the matrimonial home while on the other hand the respondent has successfully proved on record due efforts made by him to bring back the appellant to the matrimonial home. Taking into consideration the aforesaid, no infirmity or illegality can be found with the findings of the learned trail court as far as the ground of desertion is concerned.
19. The petitioner also claimed divorce on the ground of cruelty as envisaged in section 13(1)(ia), which finding was FAO 291/96 Page 30 of 34
given in favour of the respondent and the decree of divorce vide the impugned passed. The appellant has also averred that in the present appeal the respondent has not argued the ground of cruelty and thus the same is deemed to have been abandoned by the respondent. Making cruelty as a ground for divorce in conjunction with the ground of desertion has become a common practice but it cannot be lost sight of the fact that the two are completely distinct grounds and have different barometers on which they are judged. The respondent has not averred any instance of cruelty strongly or has made a case that the conduct of the appellant was such so as to cause mental agony so that they are not able to live with each other. Hence, the findings of the learned trial court on the ground of cruelty are hereby set aside.
20. Before parting with the judgment, the agonizing facts of the case need to be reiterated. The appellant was of 20 years of age and the respondent 22 when they got married in 1982. The petition for divorce was filed by the respondent husband 5 years after the marriage i.e in 1987, and the FAO 291/96 Page 31 of 34
decree of divorce granted in 1996. The present appeal was filed by the appellant before this court in 1996 itself and has come for the final decision in the year 2012. The fact that the parties who stayed together for a mere 24 hours spent close to 30 years in alleys of courts to get rid of each other, is nothing but appalling to say the least. The institution of marriage, which is considered the holy union of two souls, is made mockery of by such like cases and it is no wonder that the relevance of this pious bond is under scanner by the youth today. Each marriage has its bittersweet moments which are cherished by the couple in the sunset of their lives. The companionship of the years spent together is a comforting pillar of strength in their old age and it is most unfortunate that the parties in the present case were devoid of making any such memories, more so because of their own faults. This poignant adjudication has again drawn the mind to wonder about the litigative voyage in our courts, especially in matrimonial cases, which leaves the parties with no hope, zeal, or time to start their lives afresh. It would also be FAO 291/96 Page 32 of 34
pertinent to mention here that as per the mandate of section 9 of The Family Courts Act, 1984 and section 23(2) of the Hindu Marriage Act, the Matrimonial Courts should make every positive endeavour to bring about reconciliation between the parties so that the matter can be amicably settled on mutually acceptable terms at the very threshold. The courts should make efforts at the initial stage itself so that the burden of the courts is also lessened and the parties are also saved from the arduous litigation. The services of the mediators and counselors especially appointed for this purpose are at the disposal of the Family Courts, and should be utilized to the fullest so that parties are reconciled or agree to part mutually and amicably. Let the object of section 9 of the Family Courts Act and section 23(2) HMA not be defeated by a ritualistic exercise but a concerted, cohesive and conscientious effort on the part of the Matrimonial Courts to bring the parties to a pacific agreement. In-time intervention of the courts dealing with marital disputes with devotion of sufficient hearings at the initial stage itself may save such parties this long ordeal. FAO 291/96 Page 33 of 34 The courts should make sustained and persistent attempts even when the pleadings are complete and evidence led, as it will certainly yield potent results. The present case is nothing but a venomous irony that the vengeance which was caused in one day between the parties was nurtured by them for three decades, and I hope that they realize that it has bereft them of everything that matrimonial life would have instore, leaving them now with nothing but remorse.
21. In the light of the above, the present appeal is dismissed.
22. Let the copy of this judgment be sent to all the Matrimonial Courts functioning in various District Courts at Delhi.
January, 2012 KAILASH GAMBHIR, J Dc/mg
FAO 291/96 Page 34 of 34

http://lobis.nic.in/dhc/KG/judgement/18-01-2012/KG16012012FAO2911996.pdf

http://www.indiankanoon.org/doc/5193301/