True test of nature of a person is during adversity, Bombay HC bares allegations commonly levelled by woman seeking Divorce

True test of nature of a person is during adversity, Bombay HC bares allegations commonly levelled by woman seeking Divorce 

Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

FAMILY COURT APPEAL NO. 28  OF  2013

Rupali Ravindra Jadhav )

@ Rupali Ravindra Jadhav )

residing at E/7, Micheal Sadan,  )

Laxmi Udyog Nagar, )

Kanjur Marg (West), Mumbai – 400 078. ) ... Appellant

Vs.

Mr. Sachin M. Sawant )

G/7, Sai Ganesh Apartment, )

B Wing, Sai Baba Nagar, )

Bhyander (East), Dist.  Thane ) ... Respondent

Mr. Mukesh J. Pabari, Advocate for the Appellant.

Mr. Sachin M. Sawant, Respondent in person present. 

CORAM: 

SMT. V. K. TAHILRAMANI  &  V. L. ACHLIYA, JJ.

DATED: 12th December, 2013.

ORAL JUDGMENT :­ (Per Smt. V. K. Tahilramani, J.)

Heard the learned Advocate for the appellant and the respondent who is present in person.

2. The appellant­ Rupali  was married to the respondent­ Sachin on 10th May,  2007. It is admitted fact that thereafter the respondent was admitted in the hospital as he was suffering from cancer. On 8th August, 2008, the appellant had left the matrimonial house and did not return back.  Thereafter, she filed Petition No. A­1335 of 2010 before the Family Court, Mumbai at Bandra for dissolution of marriage on the ground of  cruelty. The Petition came to be dismissed by Judgment and Order dated 9th October,2012. Hence the appellant approached this Court.  

3. It is admitted fact that the marriage of the appellant ­Rupali and the   respondent­ Sachin   took     place   on 10th  May, 2007. Both   the appellant and the respondent were related to each other   prior to the marriage. They fell in love and there was courtship period of 5 years. Thereafter,   they got  married on 10th May, 2007.    From 8th   August, 2008,   the parties were separated. No  issue  is born out  of   the  said wedlock. 

4. The appellant sought for dissolution of marriage on the following grounds :­

(a) That  the   husband   and   his family members were using abusive words on regular basis. 

(b) That the husband and his family members used to torture petitioner mentally and physically.

(c) That the husband treated the petitioner like a slave.

(d) That the husband  and  his  parents  did  not  allow  the appellant to meet and talk to her relatives and neighbour.

(e) That  the  husband  was  insisting  to  bring money from petitioner's father.

(f) That the   husband   forcefully mortgaged the petitioner's  Stridhan.

(g) That the husband was having habit of excessive drinking.

(h) That the husband had T.B. and Venereal disease.

5. The   respondent   filed   written   statement   and   denied   all   the contentions raised by the appellant. To prove her claim, the appellant examined herself as PW1 and her sister Prachi as PW2. On the otherhand, the respondent­Sachin has examined himself as DW1. There is no other evidence on record.  In her examination­in­chief, the appellant reiterated the contentions of the Petition.  

6. The first grievance of the appellant is that the respondent and his family  members  were   using   abusive words   on   regular   basis. This according to her caused mental torture.  It is pertinent to note that she has not  given any details  about   the date,   time and place when  the respondent and his family members used abusive words to abuse her. She has not stated who abused her and the words used to abuse her. The further claim of the appellant is that she was physically assaulted for illegal  demands.   Again, she has not given any details about the date, time and place when she was physically assaulted and role played either by the respondent or any of his family members and the injury sustained by her due to such assault.   According to the appellant the respondent and his parents threatened to throw acid and kerosene on her.  Though the appellant has made allegations against the parents of the   respondent,   it   is   pertinent   to   note   that   her sister   Prachi   has  specifically   stated   that   she   knew  the   nature   of   the   parents   of   the respondent and that they are good by nature.  In view of the categorical  admission made by Prachi, the sister of the appellant, the averment of the   appellant   that   the   respondent   and   his   parents   abused   her   or assaulted her or threatened her does not appear to be true.  

7. The appellant has stated that the Respondent and his parents treated her like a slave.  During the day the appellant was working so was the Respondent, hence, there is no question of the appellant being treated as a slave during this time.  Before the appellant left for office and after   she came back  from office  the parents of   the Respondent would be at home and as they were good by nature, they would not treat her like a slave nor allow their son to do so.  Thus this contention  of the appellant does not appear probable.  

8. The next grievance of the appellant is that she was not allowed to meet  her  parents,   family members and neighbours and she was not even allowed to make phone­calls to them.   As far as these contentions are concerned, it is admitted that the appellant was working since prior to the marriage and she continued to work after the marriage.   In such case, when she used to go to work everyday, it was very much possible for her to make calls to her parents and other persons as well as to meet them  on   the  way   to   and   fro from work. It   is   also   seen   that   the respondent was working, therefore, during whole day he was busy at his work place and in natural course, there would be no occasion for him to put alleged restriction on the appellant.  As stated earlier, Prachi­ sister of the appellant has admitted that the parents of the respondent were good by nature.  Therefore, stand taken by the appellant that the respondent   and his   family members did not  allow her   to meet  her parents, family members  and neighbours  appears   to be  improbable. 

The appellant has admitted that she was working and getting salary. This shows that she was educated and having financial independence to some extent.  If she was working then she was free to call her parents, family members and neighbours and to visit them.   As stated earlier respondent was also working, in such circumstances, the averment that she was  not  allowed  to meet  her  parents  and  family members  and neighbours appears to be improbable.

9. The next grievance raised by the appellant is that the respondent was in habit of excessive drinking.   Mere drinking is not sufficient to constitute matrimonial offence unless it is coupled with overtact, which is sufficient   to   make   it   difficult   for   the   either   party   to   perform matrimonial   obligations. At   this stage, it  may   be   stated   that   the respondent  was suffering from cancer.    Soon after  the marriage, the cancer was detected.   In such case, it is not expected that when the respondent   was   undergoing   treatment   for   cancer   and   was   even admitted in ICU, he would be taking excessive drinks. A person who was  undergoing   treatment   for   cancer   can   hardly   continue   drinking habit.

10. The further case of the appellant is that when the respondent was admitted in the hospital in ICU due to his cancer ailment, money was demanded from her father to pay for the treatment and she  was made to mortgage her Stridhan.   It is most unfortunate fact that within two  months  of   the marriage, respondent was diagnosed  to be  suffering from cancer and he was admitted in ICU.  The case of the respondent is that when he was in ICU, the appellant left him.  He has further stated that appellant had not bothered to take care of him during such crucial period.  It is pertinent to note that Prachi, the sister of the appellant admitted in cross­examination that it is true that her sister i.e. appellant never went to see respondent­Sachin, when he was admitted in ICU and after his discharge.   Obviously, when the appellant did not even go to see the Respondent in hospital, there was no question of demanding any money from her.  As it is an admitted fact that the appellant never went   to   see   the  Respondent  when   he  was   in   hospital   or   after   his discharge the case that she was made to mortgage her Stridhan does not appear to be probable.  

11. It is to be noted that the respondent in his evidence has stated that to buy another house,  he had given money to his father­in­law. This averment has remained unshaken in the cross­examination. This shows  that  in fact the respondent had given money to father of the  appellant   to purchase a house.  In such circumstances, it  cannot  be believed that the family members of respondent would demand money for treatment or otherwise from the parents of the appellant.  Moreover, the appellant has admitted that in the marriage she was given a big Mangalsutra and bangles by the respondent.  Looking at these facts, it appears to be improbable that when the respondent was in ICU, money was demanded from her parents to pay for his treatment. 

12. According  to  the appellant   the  respondent  had T.B.  This can hardly be a ground to seek divorce. T.B. is not a permanent disease and it is very much curable.  Thereafter, the case of the appellant is that the respondent had venereal disease.  In relation to this contention it is to be noted that no such averment is made  in the petition for divorce. Moreover the petition for divorce is only under section 13(i)(ia) of the Hindu Marriage Act, 1955 that is cruelty and not under section 13(v) of the Hindu Marriage Act, 1955, which cites venereal disease as a ground  for divorce. Thus this averment in her evidence before the Court will not help her. 

13. It is stated that true test of nature of a person is during adversity. The evidence of the appellant in relation to cruelty is found very vague. Looking at the material aspects of the case, the same is not corroborated by independent and reliable witness. On the contrary, the  actual  period of cohabitation between the parties was very small i.e. merely two months. When the respondent was suffering from cancer, the appellant left  him. This in fact, reveals the true nature of the appellant.   

14. The  term  'cruelty'   is  not  defined,   therefore,   there cannot  be a straight jacket formula for determining whether there  is cruelty or not. Each case depends upon its own facts and circumstances.  The conduct complained of should  be grave and weighty.  It should touch a pitch of severity to satisfy the  conscience   of   Court   that   parties   cannot   live together with each other any more without mental agony, distress and torture. Keeping in mind the above settled legal principles and after scrutinizing the entire evidence on record.  We find that there was not a single   incident  which  can be   called as   intolerable  and was  of   such nature   that   it  was  making   it  difficult   for   appellant   to   continue   the matrimonial relations.

15. In matrimonial disputes, first the allegations have to be proved, thereafter   question   arises   whether  proved   facts   are   sufficient   to constitute   cruelty   or   not. The   appellant   has   failed   to   prove   the allegations itself, therefore, there was no question of cruelty.

16. In the present case, it appears that as soon as appellant came to  know that   the   respondent was suffering   from  cancer   and   he   was admitted in ICU, appellant left him which is clear from the evidence of her sister Prachi.   It appears that the appellant is taking advantage of her own wrong while claiming relief. She has left the company of respondent when he was suffering from cancer.  There is nothing in her evidence to show that inspite of all odds, she was ready to continue the relations, however, the conduct of respondent was making it difficult to discharge the matrimonial obligations.    

17. On going through the entire evidence on record, in our opinion the appellant has totally failed to prove her case.   We find no merit in the Appeal.  Appeal is dismissed.

(V.L.ACHLIYA, J.)           (SMT V.K.TAHILRAMANI, J.)

SOURCE-http://bombayhighcourt.nic.in/generatenewauth.php?auth=cGF0aD0uL2RhdGEvanVkZ2VtZW50cy8yMDEzLyZmbmFtZT1DRkNBMzg5OTEzLnBkZiZzbWZsYWc9Tg==

Wearing revealing dress is cruel and ground for divorce: Delhi court

Feb 11, 2011, 21:16 IST

Wearing a revealing dress during her honeymoon proved costly for a woman as a court granted divorce to her husband saying improper dressing by the woman brought mental cruelty to the man.

"Cruelty includes not only physical but mental cruelty as well. Ostensibly, she (wife) has indulged in bloating falsehood beyond proportions," additional district judge Manmohan Sharma ruled, accepting the husband's plea that he suffered mental agony due to his wife wearing 'vulgar' dresses regularly since their honeymoon.

The court allowed the husband's divorce plea saying "mere living under one roof without the necessary ingredients of love and faith, which are the hallmark of a fruitful matrimonial relationship, is nothing but animal existence."

The husband, in his petition seeking divorece on the ground of having been subjected to cruelty, had contended that his wife wore vulgar clothes during their honeymoon.

"During their honeymoon, she dressed herself in a very vulgar manner and when he asked her to change the dress she retorted that she had dressed herself that way to be noticed by at least 50 people," the husband had said in his plea.

The court gave divorce decree to the husband after hearing some audio recordings, played by the woman's father-in-law, proving that she had conspired with her parents to torture her husband and in-laws.

"She (wife) has gone to the extent of conspiring with her parents to teach the petitioner (husband) and his family a lesson," the court held in its ruling.

"The nature of cruelty suffered by the petitioner (husband) is partly physical and predominantly mental. So, it is held that he has been treated with cruelty by respondent (wife) after solemnisation of their marriage," the court said.

The couple had married in August 2007.

The court allowed the man's divorce plea rejecting the woman's contentions that her husband and in-laws had levelled frivolous and baseless allegations against her as her parnets failed to meet their demand for dowry.

"The respondent (wife) crossed another milestone by making reckless allegations of demand of dowry and illicit relationship against her husband, which she could not prove," the court said.

http://www.dnaindia.com/india/report_wearing-revealing-dress-is-cruel-and-ground-for-divorce-delhi-court_1506527

SC - DV Act could not be maintained as long as the decree of divorce remain in force. Quashes domestic violence case by woman against ex-husband after a mutual consent divorce

                                                                     REPORTABLE


                     IN THE SUPREME COURT OF INDIA
                    CRIMINAL APPELLATE JURISDICTION

                CRIMINAL APPEAL NO. 1635 of 2011
           (Arising out of SLP(Crl.) No. 7787 of 2010)


Inderjit Singh Grewal                                       ...Appellant

                                          Versus

State of Punjab & Anr.                                      ...Respondents


                                J U D G M E N T



Dr. B.S. CHAUHAN, J.


1.   Leave granted.


2. The instant appeal reveals a very sorry state of affair where

the wife files a criminal complaint before the competent court

to initiate criminal proceedings against her husband alleging

that they had obtained decree of divorce by playing fraud upon

the court without realising that in such a fact-situation she

herself   would     be   an    accomplice   in     the   crime   and    equally

responsible   for    the      offence.   More   so,   the   appeal     raises   a

substantial question of law as to whether the judgment and

decree of a competent Civil Court can be declared null and void

in collateral proceedings, that too, criminal proceedings.


3. This criminal appeal arises from the judgment and final order

dated 9.8.2010 in Criminal Misc. No. M-29339 of 2009 (O&M)
passed by the High Court of Punjab & Haryana at Chandigarh, by

which the High Court has dismissed the application filed by the

appellant under Section 482 of Code of Criminal Procedure, 1973

(hereinafter called as `Cr.P.C.') for quashing the complaint

No. 87/02/09 dated 12.6.2009 filed by             respondent no. 2 under

Section 12 of the Protection of Women from Domestic Violence

Act, 2005 (hereinafter called the `Act 2005').


4. Facts and circumstances giving rise to present case are as

under:

A. That   the   appellant     and    respondent   no.   2   got   married   on

23.9.1998 at Jalandhar as per Sikh rites and from the said

wedlock a son, namely, Gurarjit Singh was born on 5.10.1999.

The parties to the marriage could not pull on well together

because of temperamental differences and decided to get divorce

and, therefore, filed HMA Case No. 168 of 19.9.2007 before the

District Judge, Ludhiana under Section 13-B of Hindu Marriage

Act, 1955 (hereinafter called the `Act 1955') for dissolution

of marriage by mutual consent.          In the said case, statements of

appellant and respondent no. 2 were recorded on 19.9.2007 and

proceedings were adjourned for a period of more than six months

to enable them     to ponder over the issue.

B. The parties again appeared before the court on 20.3.2008 on

second motion and their statements            were recorded and both of

them   affirmed   that   it    was    not   possible    for   them   to   live

                                                                      2
together and, therefore, the learned District Judge, Ludhiana

vide    judgment      and    order      dated     20.3.2008          allowed    the     said

petition and dissolved their marriage.

C.         Respondent        no.    2     filed      a    complaint     before     Senior

Superintendent        of    Police, Ludhiana against the appellant                        on

4.5.2009 under the provisions of the Act 2005 alleging that the

decree of divorce obtained by them was a sham transaction.

Even    after      getting    divorce,        both       of   them    had   been   living

together as husband and wife.                     She was forced to leave the

matrimonial        home.    Thus,    she      prayed      for   justice.        The     said

complaint     was     sent    to    SP,    City-I,        Ludhiana      for    conducting

inquiry.        The    said    SP,      City-I       conducted       the    full-fledged

inquiry and submitted the report on 4.5.2009                               to the effect

that the parties had been living separately after divorce and,

no case was made out against the present appellant. However, he

suggested       to seek legal opinion             in the matter.

D. Accordingly, legal opinion dated 2.6.2009 was sought, wherein

it was opined that the parties had obtained the divorce decree

by mutual consent and the allegations made by                         respondent no. 2

against the appellant were false and baseless and the purpose

of filing the complaint was only to harass the appellant.

E.     Respondent no. 2 subsequently filed a complaint under the

Act    2005   on    12.6.2009.          The    learned        Magistrate       issued    the

summons to the appellant on the same date.                       The Magistrate vide


                                                                                   3
order dated 3.10.2009 summoned the minor child for counseling.

The appellant, being aggrieved of the order of Ld. Magistrate

dated     12.6.2009,       filed    application       dated     13.10.2009        under

Section 482 Cr.P.C. for quashing the complaint dated 12.6.2009.

F. In    the   meanwhile,     respondent       no.    2    filed   Civil      Suit   on

17.7.2009      in    the   court    of   Civil       Judge    (Senior   Division),

Ludhiana,      seeking     declaration       that    the     judgment   and    decree

dated 20.3.2008, i.e. decree of divorce, was null and void as

it had been obtained by fraud. The said suit is still pending.



G.                  Respondent     no.   2   also     filed    application        dated

17.12.2009 under Guardians and Wards Act, 1890 for grant of

custody and guardianship of the minor child Gurarjit Singh and

the same is pending for consideration before the Additional

Civil Judge (Senior Division), Ludhiana.

H.        Respondent no. 2 on 11.2.2010 also lodged an FIR under

Sections 406, 498-A, 376, 120-B of               the Indian Penal Code, 1860

(hereinafter called `IPC') against the appellant and his mother

and sister.

I.        The High Court vide impugned judgment and order dated

9.8.2010 dismissed the application filed by the appellant.

        Hence, this appeal.


5. Shri Ranjit Kumar, learned senior counsel appearing for the

appellant has submitted that the High Court erred in rejecting

                                                                              4
the application of the appellant under Section 482 Cr.P.C., as

none of the reliefs claimed by the respondent no.2 could be

entertained      by    the    criminal      court       while    dealing    with        the

complaint;      the    complaint      itself       is   time     barred,    thus,      the

Magistrate      Court     could      not    take        cognizance    thereof.          The

complaint has been filed because of malice in order to extract

money from the appellant. More so, the plea of fraud alleged by

the respondent no.2 in the complaint for obtaining the decree

of    divorce    before      the Civil Court as per her own version,

succinctly reveals that she herself had been a party to this

fraud. The High Court failed to appreciate as to what extent

her    version    could       be   accepted        as   she     herself    being       the

accomplice in the said offence of fraud committed upon the

court. Even if the allegations made therein are true, she is

equally liable for punishment under Section 107 IPC. More so,

the reliefs claimed by the respondent no. 2 in the civil suit

for declaring         the decree of divorce as                null and void and in

another suit for getting the custody of the child referred to

hereinabove, would meet her requirements.                         Thus, the appeal

deserves to be allowed.


6. On the contrary, Shri Manoj Swarup, learned counsel appearing

for    the   respondent       no.2    has    vehemently         opposed    the       appeal

contending that decree of divorce is a nullity as it has been

obtained by fraud. The relationship of husband and wife between

                                                                                 5
the     appellant      and    respondent   no.2   still   subsists   and     thus,

complaint is maintainable. The court has to take the complaint

on its face value and the allegations made in the complaint

require adjudication on facts. The                 issue of limitation etc.

can be examined by the Magistrate Court itself.                      The appeal

lacks merit and is liable to be dismissed.

7. We    have    considered the rival submissions made by learned

counsel for the parties and perused the record.


8. Before we proceed to determine the case on merit, it is

desirable to highlight the admitted facts of the case:

I. Appellant and respondent no.2 are              highly qualified persons.

Both     of     them    are    employed     and   economically   independent.

Appellant is an Assistant Professor and respondent no. 2 is a

Lecturer.       The    appellant     is    Ph.D   and   respondent    no.2    has

registered herself for Ph.D.               They are competent to understand

the complications of law and other facts prevailing in the

case.


II.           Both of them got married in year 1998 and had been

blessed with a son in year 1999. There was no complaint by

respondent no.2 against the appellant of any cruelty, demand of

dowry etc. before getting the decree of divorce dated 20.3.2008

by mutual consent.




                                                                        6
III.         The decree of divorce has been obtained under Section

13-B of the Act 1955. Respondent no.2 was examined by the court

on first motion on 19.9.2007 wherein she stated,             inter-alia,

as under:

       "We are living separately from each other since
       23.9.2005. Now there is no chance of our living
       together as husband and wife."
IV.Respondent no.2 was examined in the second motion by the

learned    District   Judge,   Ludhiana   on   20.3.2008,   wherein   she

stated as under:

          "My   statement     was   recorded  on   19.9.2007
          alongwith the statement of my husband Inderjit
          Singh Grewal.     Six months time was given to us
          to ponder over the matter but we could not
          reconcile. One child was born from our wedlock
          namely Gurarjit Singh Grewal whose custody has
          been handed over by me to my husband Inderjit
          Singh Grewal and he shall look after the welfare
          of the said child. We have settled all our
          disputes regarding dowry articles and past and
          future permanent alimony. Now there is nothing
          left out against each other. A draft of
          Rs.3,00,000/- ....has been received by me towards
          permanent alimony and maintenance and in lieu of
          dowry articles left by me in the matrimonial
          home. We are living separately since 23.9.2005.
          After that there is no co-habitation between us.
          There is no scope of our living together as
          husband and wife. I will remain bound by the
          terms and conditions as enshrined in the
          petition.    I have left with no claim against
          petitioner No.1. Our marriage may be dissolved
          by passing a decree of divorce by mutual
          consent."


V. The learned District Judge, Ludhiana granted the decree of

divorce dated 20.3.2008 observing as under:



                                                                 7
        "They have settled all their disputes regarding
        dowry articles, past and future alimony....They
        are living separately from each other since
        23.9.2005...The petitioners have not been able to
        reconcile....The petitioners have settled all
        their disputes regarding dowry, stridhan and
        past and future permanent alimony....The custody
        of the son of the petitioners is handed over to
        Inderjit Singh Grewal by Amandeep Kaur. The
        petition is allowed. The marriage between the
        petitioners is henceforth declared dissolved...."


VI.The complaint dated 4.5.2009 filed by respondent no. 2 before

the Senior Superintendent of Police, Ludhiana was investigated

by the Superintendent of Police, City-I, Ludhiana.              He recorded

statements of several neighbours and maid servant working in

appellant's house and submitted the report to the effect that as

the husband and wife could not live together, they obtained the

decree of divorce by mutual consent. However, the complainant

Amandeep Kaur had alleged that she was induced by her husband to

get divorce for settling in the United States and it was his

intention          to kick her out from the house.             However, the

husband stated that she had been paid Rs.3,00,000/- in the court

by   draft   and    Rs.27,00,000/-   in   cash   for   which   the   husband

Inderjit Singh Grewal had entered into an agreement to sell his

ancestral property.       The complainant had not been living with

the appellant after the decree of divorce and they were not

having physical relationship with each other.             It was further

suggested in the report that legal opinion may also be taken.



                                                                     8
VII.          Legal opinion dated 2.6.2009                had been to the effect

that the parties had taken divorce by mutual consent due to

their differences. The allegation to the extent that they had

been living together even after divorce were false and baseless

and had been labelled only to harass the appellant.


9. The    instant      case     is   required       to    be   considered    in    the

aforesaid factual backdrop.

      So far as the complaint dated 12.6.2009 is concerned, there

had    been   allegation       of    mis-behaviour        against    the    appellant

during the period of year 2005. Respondent no. 2 alleged that

during    that      period     she   had    not    been    treated    well    by   the

appellant, thus, she had to take shelter in the house of her

parents; all her belongings including the dowry articles were

kept by the appellant and his parents.                     She has further given

details how both of them have obtained decree of divorce by

mutual consent as they wanted to settle in United States and

therefore, they had decided to get divorce on paper so that the

appellant     may    go   to    U.S.A.     and    get    American    citizenship    by

negotiating a marriage of convenience with some U.S. citizen and

divorce her and again re-marry the complainant.                         She further

alleged that even after decree of divorce she had been living

with the appellant till 7.2.2009 and continued co-habitation

with him. They had visited several places together during this

period. The child had been forcibly snatched from her by the

                                                                              9
appellant. Therefore, she was entitled to the custody of the

minor child along with other reliefs.


10.The question does arise as to whether reliefs sought in the

complaint can be granted by the criminal court so long as the

judgment and decree of the Civil Court dated 20.3.2008 subsists.

Respondent no.2      has prayed as under:

          "It is therefore prayed that the respondent no.1
          be directed to hand over the custody of the
          minor child Gurarjit Singh Grewal forthwith. It
          is also prayed that the respondent no.1 be
          directed to pay to her a sum of Rs.15,000/- per
          month   by way of rent    of the premises to be
          hired by her at Ludhiana for her residence. It
          is also prayed that all the respondents be
          directed to restore to her all the dowry
          articles as detailed in Annexure A to C or in
          the alternative they be directed to pay to her a
          sum of Rs.22,95,000/- as the price of the dowry
          articles. Affidavit attached."

               Thus, the reliefs sought have been threefolds:

(a) Custody of the minor son; (b) right of residence; and (c)

restoration of dowry articles.


11.It     is   a   settled legal proposition that where a person gets

      an order/office by making misrepresentation or playing fraud

upon the competent authority, such order cannot be sustained in

the eyes of the law as fraud unravels everything.              "Equity is

always known to defend the law from crafty evasions and new

subtleties invented to evade law".             It is a trite that "Fraud

and     justice    never   dwell   together"    (fraus   et   jus   nunquam


                                                                    10
cohabitant).      Fraud is an act of deliberate deception with a

design to secure something, which is otherwise not due. Fraud

and   deception     are   synonymous.       "Fraud    is   an    anathema    to    all

equitable principles and any affair tainted with fraud cannot be

perpetuated    or    saved    by    the     application         of   any   equitable

doctrine". An act of fraud on court is always viewed seriously.

(Vide: Meghmala & Ors. v. G. Narasimha Reddy & Ors., (2010) 8

SCC 383)


12.However,    the    question     does     arise    as    to    whether      it   is

permissible for a party to treat the judgment and order as null

and void without getting it set aside from the competent court.

           The issue is no more res integra and stands settled by

a catena of decisions of this Court. For setting aside such an

order, even if void, the party has to approach the appropriate

forum.   (Vide:     State    of    Kerala    v.     M.K.   Kunhikannan      Nambiar

Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 SC 906; and

Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt.

Ltd., AIR 1997 SC 1240).


13.In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377,

this Court held that there cannot be any doubt that even if an

order is void or voidable, the same requires to be set aside by

the competent court.




                                                                             11
14.In M. Meenakshi & Ors. v. Metadin Agarwal (dead) by Lrs. &

Ors., (2006) 7 SCC 470, this Court considered the issue at

length and observed that if the party feels that the order

passed by the court or a statutory authority is non-est/void, he

should   question   the    validity   of    the   said   order     before      the

appropriate forum resorting to the appropriate proceedings. The

Court observed as under:­

         "It is well settled principle of law that even a
         void order is required to be set aside by a
         competent Court of law, inasmuch as an order may
         be void in respect of one person but may be
         valid in respect of another. A void order is
         necessarily not non-est. An order cannot be
         declared to be void in collateral proceedings
         and that too in the absence of the authorities
         who were the authors thereof."         (Emphasis
         added)


     Similar view has been reiterated by this Court in Sneh

Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194.


           From the above, it is evident that even if a decree is

void ab initio, declaration to that effect has to be obtained by

the person aggrieved       from the competent court. More so, such a

declaration cannot be obtained in collateral proceedings.


15.Respondent   no.2      herself   had    been   a   party   to   the        fraud

committed by the appellant upon the civil court for getting the

decree of divorce as alleged by her in the impugned complaint.



                                                                         12
Thus,     according to her own admission she herself is an abettor

to the crime.


              A person alleging his own infamy cannot be heard at

any   forum   as     explained     by   the   legal   maxim   "allegans    suam

turpetudinem non est audiendus". No one should have an advantage

from his own wrong (commondum ex injuria sua memo habere debet).

No action arises from an immoral cause (ex turpi cause non

oritur action).        Damage suffered by consent is not a cause of

action    (volenti    non   fit    injuria).    The   statements/allegations

made by the respondent no.2 patently and latently involve her in

the alleged fraud committed upon the court.                   Thus, she made

herself    disentitled for any equitable relief.

16.The offence of abetment is complete when the alleged abettor

has instigated another or engaged with another in a conspiracy

to commit offence. (Vide: Faguna Kanta Nath v. The State of

Assam, AIR 1959 SC 673;           and Jamuna Singh v. State of Bihar AIR

1967 SC 553).      If more than one person combining both in intent

and act, commit an offence jointly, each is guilty, as if he has

done the whole         act alone.        Offence has been defined under

Section 40 IPC and Section 43            IPC defines illegality.          Making

false statement on oath before the court is an offence under

Section 191 IPC and punishable under Section 193 IPC.




                                                                      13
17.While         granting      the    decree      of     divorce,     the   statement         of

respondent no.2 had been recorded in the first as well as in the

second motion as mentioned hereinabove. Period of more than 6

months was given to her to think over the issue. However, she

made a similar statement in the second motion as well.


18.As      per    the   statutory         requirement,          the   purpose    of    second

motion after a period of six months is that parties may make

further      efforts      for    reconciliation            in    order   to     save        their

marriage.         There is also obligation on the part of the court

under Section 23(2) of the Act 1955 to make every endeavour to

bring about a reconciliation between the parties.

                    In Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083,

this Court held that conjugal rights are not merely creature of

statute      but    inherent         in   the     very    institution       of   marriage.

Hence, the approach of a court of law in matrimonial matters

should be "much more constructive, affirmative and productive

rather than abstract, theoretical or doctrinaire".                               The court

should not give up the effort of reconciliation merely on the

ground that there is no chance for reconciliation or one party

or   the    other       says    that      there    is     no    possibility      of    living

together.         Therefore, it is merely a misgiving that the courts

are not concerned and obligated to save the sanctity of the

institution of marriage.



                                                                                       14
19.In Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1304, this

Court held that mere filing the petition for divorce by mutual

consent    does   not   authorise   the   court   to   make   a   decree   for

divorce. The interregnum waiting period from 6 to 18 months is

obviously intended to give time and opportunity               to the parties

to reflect on their move and seek advice from relations and

friends.     In this transitional period one of the parties may

have a second thought and change the mind not to proceed with

the petition.     The court must be satisfied about the bona fides

and the consent of the parties for the reason that court gets

jurisdiction to make a decree for divorce only on mutual consent

at the time of enquiry.         The consent must continue to decree

nisi and must be valid subsisting consent when the case is

heard. Thus, withdrawal of consent can be unilateral prior to

second motion.     The Court further observed:

           "The 'living separately' for a period of one
          year   should  be  immediately   preceding  the
          presentation of the petition. It is necessary
          that immediately preceding the presentation of
          petition, the parties must have been living
          separately. The expression 'living separately',
          connotes to our mind not living like husband
          and wife. It has no reference to the place of
          living. The parties may live under the same
          roof by force of circumstances, and yet they
          may not be living as husband and wife. The.
          parties may be living in different houses and
          yet they could live as husband and wife. What
          seems to be necesssary is that they have no
          desire to perform marital obligations and with
          that mental attitude they have been living
          separately for a period of one year immediately
          preceding the presentation of the petition. The

                                                                     15
       second requirement that they 'have not been
       able to live together' seems to indicate the
       concept of broken down marriage and it would
       not be possible to reconcile themselves. The
       third requirement is that they have mutually
       agreed that the marriage should be dissolved."
       (Emphasis added)


20.For grant of divorce in such a case, the Court has to be

satisfied   about   the   existence   of   mutual   consent   between   the

parties on some tangible materials which demonstrably disclose

such consent. (Vide: Hitesh Bhatnagar v. Deepa Bhatnagar, AIR

2011 SC 1637).


21.Respondent no.2, who did not change her stand in the second

motion and obtained a sham decree of divorce as alleged by her

asked the criminal court to sit in appeal against the judgment

and decree of the competent Civil Court.              The complaint was

filed before the Magistrate, Jalandhar              while the decree of

divorce had been granted by the District Judge, Ludhiana i.e. of

another district. Therefore, it is beyond our imagination as

under what circumstances a subordinate criminal court             can sit

in appeal   against the judgment and order of the superior Civil

Court, having a different territorial jurisdiction.


22.In the facts and circumstances of the case, the submission

made on behalf of respondent no.2 that the judgment and decree

of a Civil Court granting divorce is null and void and they

continued to be the husband and wife, cannot be taken note of at

                                                                  16
this stage unless the suit filed by             the respondent no.2 to

declare the said judgment and decree dated 20.3.2008             is decided

in her favour.        In view thereof, the evidence adduced by her

particularly    the   record   of   the   telephone    calls,   photographs

attending a wedding together and her signatures in school diary

of the child cannot be taken into consideration so long as the

judgment and decree of the Civil Court subsists.           On the similar

footing,   the contention advanced by her counsel that even after

the   decree   of   divorce,   they   continued   to    live    together   as

husband and wife       and therefore the complaint under            the Act

2005 is maintainable, is not worth acceptance at this stage.


23.In D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, this

Court considered the expression "domestic relationship" under

Section 2(f)        of the Act 2005 placing reliance on             earlier

judgment in Savitaben Somabhai Bhatiya v. State of Gujarat &

Ors., (2005) 3 SCC 636 and held that relationship "in the nature

of marriage" is akin to a common law marriage. However,                    the

couple must hold themselves out to society as being akin to

spouses in addition to fulfilling all other requisite conditions

for a valid marriage.

           The said judgments are distinguishable on facts as

those cases relate to live-in relationship without marriage. In

the instant case, the parties got married and the decree of

Civil Court for divorce still subsists.               More so, a suit to

                                                                    17
declare the said judgment and decree as a nullity is still

pending consideration before the competent court.


24.Submissions      made    by   Shri    Ranjit      Kumar   on   the    issue   of

limitation, in view of the provisions of Section 468 Cr.P.C.,

that the complaint could be filed only within a period of one

year from the date of the incident seem to be preponderous in

view of the provisions of Sections 28 and 32 of the Act 2005

read with Rule 15(6) of          The Protection of Women from Domestic

Violence   Rules,    2006    which      make   the    provisions    of    Cr.P.C.

applicable and stand fortified by the judgments of this court in

Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and

Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC

508.


25.In view of the above, we are of the considered opinion that

permitting the Magistrate to proceed further with the complaint

under the provisions of the Act 2005 is not compatible and in

consonance with the decree of divorce which still subsists and

thus, the process amounts to abuse of the process of the court.

Undoubtedly, for quashing a complaint, the court has to take its

contents on its face value and in case the same discloses an

offence, the court generally does not interfere with the same.

However, in the backdrop of the factual matrix of this case,

permitting the court to proceed with the complaint would be


                                                                           18
travesty of justice. Thus, interest of justice warrants quashing

of the same.



26.    The appeal succeeds and is allowed. The impugned judgment

and order dated 9.8.2010 is hereby set aside. Petition filed by

the appellant under Section 482 Cr.P.C. is allowed.                                    Complaint

No. 87/02/09 pending before the Magistrate, Jalandhar and all

orders passed therein are quashed.



             Before   parting   with        the           case,              we    clarify    that

respondent no.2 shall be entitled to continue with her other

cases and the court concerned may proceed in accordance with law

without being influenced by the observations made herein.                                      The

said observations have been made only to decide the application

under Section 482 Cr.P.C. filed by the appellant.




                                      ........................................J.
                                       (P. SATHASIVAM)


                                  .........................................J.
                                  (Dr. B.S. CHAUHAN)
New Delhi
August 23,     2011




                                                                                         19
ITEM NO. 1-A               COURT No.8               SECTION IIB
( For Judgment )



               S U P R E M E   C O U R T   O F   I N D I A
                           RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO.1635 OF 2011 @ SLP (Crl) No.7787/2010

INDERJIT SINGH GREWAL                        ..      Appellant(s)

                           Versus

STATE OF PUNJAB & ANR.                      ..      Respondent(s)




DATE : 23/08/2011      This APPEAL was called
                    on for pronouncement of judgment today.


For Appellant(s)    Mr.Ravindra Keshwarao Adsure, Adv.


For Respondent(s)   Mr.Rohit Kumar Singh, Adv.

                    Ms.Kavita Wadia, Adv.

                           ---

            Hon'ble Dr. Justice B.S. Chauhan pronounced the
       judgment of the Bench comprising Hon'ble Mr. Justice P.
       Sathasivam and His Lordship.

            Leave granted. The appeal is allowed.


           [ Usha Bhardwaj ]                [ Savita Sainani ]
              Court Master                     Court Master


        [ Signed reportable judgment is placed on the file ]




                                                              20



Source :- http://courtnic.nic.in/supremecourt/temp/sr%20778710p.txt

Media report
http://timesofindia.indiatimes.com/india/After-divorce-woman-files-domestic-violence-case-against-ex-husband/articleshow/9726197.cms

Don't lose heart after an early divorce – The Insight

Don't lose heart after an early divorce

Divashri Sinha,MUMBAI MIRROR,Mar 7, 2011, 11.51am IST

Life doesn't come to an end if you get divorced in your 30s. Here's how you can pull yourself together

Find yourself at the end of a marriage, single and emotionally-stranded in your late 30s? While at some ages it's easier to bounce back from upheavals, the late 30s and early 40s are not the easiest in these matters. The silver lining, however, is that it's a lifealtering event which, if played well, can lead you to a happier place ultimately. The trick is to put one foot in front of the other and move on to making a full recovery. Marriage counsellor and therapist, Manju Jain debriefs you on things you must get in order, if you find yourself at this difficult crossroad.

Heart first

The death of a relationship, no matter how long its duration, is always intense and difficult. In your 20s and early 30s, it is easier to wrap up an intimate relationship. For a middle-aged adult with multiple responsibilities, this process magnifies manifold.

- Take the time to grieve, heal and restore. However, there will come a time when you'll have to accept facts and just get on with life. If you have children, they will force you to keep your focus in check.

- While it is an immensely overwhelming feeling, terms like "my life is over" or "I've lost everything" are very powerful and have a strong impact on how you feel. Recognise that this isn't factually true and work on it from there.

- Your emotional vulnerability and insecurities need to be addressed. To begin with, get a good listener. Create a support squad of your closest friends and family who won't mind providing you with emotional support, professional guidance and ongoing inspiration. Realise that you're not the first person to go through this.

- Avoid discussing your issues with or in front of your children. They have their own issues to deal with.

Mindspeak

In the end, it doesn't matter whose fault it was. Don't fester over revenge and orchestrate devious plans of ruining your ex's life. Negative energy needs to be dispelled even though forgetting and forgiving may sound like a tall order. Concentrate your energy on clearing your mind space. Don't focus on anger, focus on yourself. De-clutter.

- While you may no longer be with the one half of a couple any longer, you are still 100 per cent the same person you were. Go back and rediscover yourself. Make a trip, preferably alone. After a long spell of marriage, finding the courage and independence to travel alone will give you the confidence to survive as a singleton.

- Do what you loved to do before you got married. Many people, especially by the time they reach their middle age, have put themselves aside for the sake of their families and given up on things they used to love. If you once loved to dance or paint or ride a motorcycle, do it again.

- Focus on your professional graph to ensure you don't get sucked into a downward depression cycle.

- Get counselling if you need it. Divorce is traumatic so if you find that you are having problems sleeping, are depressed or have feelings of low self-esteem, get help. While these are common things to go through after, they can become a serious matter if they begin to interfere with your life.

Get back in the game

Getting back into the dating game can be rough because you have been out of it for a while. It can feel daunting. The thing with going into long droughts after a divorce is that, the more you prolong getting back in the game, the tougher you are making it for yourself.

- Do things that make you feel beautiful and don't bother trying to compete with younger men and their trimmer behinds. Embrace your beauty and wear your accomplishments proudly.

- Having been through a marriage, you will be very clear about what you are looking for. Don't rush into anything for the fear of being alone. So whether it is a meaningful long relationship or a short term casual association, you will have to make the effort of starting off, even if the first few turn out to be bumpy. Get a group of friends together and slowly start getting yourself out there.

Body beautiful

Over the years, people can let their body image slide and become sloppy. Feeling good is a lot about looking good.

- Hit the gym. Don't try to achieve miracles for your body. But it will keep you physically active and release the healthy feel good endorphins. Get a manicure, pedicure, and a snazzy new wardrobe.

- Don't let age, work, stress and children be the excuse for you to neglect your health. It's common for people going through a divorce to eat too much or too little. Eat a well-balanced diet and get at least 30 minutes of exercise for three to five days a week.

- Wear make up to work, do your hair well. Tone down the scruff and create a positive body image.

Money matters

After all the legalities are done away with, ensure you have a grip on your financial condition and assets. After years of shared bank accounts and joint ownership of assets, this process is particularly painful. But make sure you don't feel cheated of your rightful share.

- Get your household finances in order. If your spouse took care of balancing the cheque book and paying the bills when you were married, now you need to be able to run your own finances successfully.

- Keep a record of when certain bills, such as credit card bills and utility bills, are due, so that you won't be lagging behind in making payments.

- Keep all important finance-related paperwork, such as bank statements and insurance policies together in a drawer, where they can easily be found. Following a divorce, being able to manage your money wisely is pivotal to getting your life in order.

http://articles.timesofindia.indiatimes.com/2011-03-07/man-woman/28665194_1_marriage-divorce-matter

Del HC – False implication of husband’s relatives in 498a is ground for divorce (cruelty) to husband

MAT APP No. 98/2010                                                                                     

IN THE HIGH COURT OF DELHI AT NEW DELHI          MAT APP No. 98/2010

Judgment delivered on: 19.11.2010

Smt. Nitu Aggarwal              ..... Appellant
Through:  Mr.Rajiv Shukla, Adv.

        Versus

Sh.Gireesh Gupta              ..... Respondent
        Through:  Mr.Gyan Prakash, Adv.

CORAM:  HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1.  Whether the Reporters of local papers may  be allowed to see the judgment?                      Yes  
2.  To be referred to Reporter or not?      Yes
3.  Whether the judgment should be reported  in the Digest?                     Yes

KAILASH GAMBHIR, J. Oral:

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge MAT APP No. 98/2010 Page 1 of 11 the judgment and decree dated 27.4.2010, passed by the learned Additional District Judge, Delhi, whereby a decree of judicial separation was passed.

2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 5.11.03 at Noida according to Hindu rites and ceremonies and a female child was born out of wedlock on 14.9.04. The matrimonial relations between the parties were stained right from the very beginning of their married life and distressed by the behaviour of the appellant, the respondent filed a petition under section 10 of the Hindu Marriage Act, 1955 for a decree of judicial separation on the ground of cruelty which vide judgment dated 27.4.10 was granted. Feeling aggrieved with the same, the appellant has filed the present appeal.

3. Mr. Rajiv Shukla, counsel for the appellant submits that the learned trial court has wrongly assumed that the appellant had consumed some poisonous substance with a view to commit suicide. The contention of the counsel for the appellant is that the respondent used to compel and force the appellant to consume certain medicines under the pretext that the same were good for her health and for the child in the womb. Counsel further submits that the respondent also failed to prove on record that an attempt of suicide by the appellant was made with a view to coerce the respondent to accede to any of her demands and in the absence of any such assertion on the part of the respondent, no logic or rationale behind the alleged attempt of suicide by the appellant could be established by the respondent. Explaining the contradiction on the part of the appellant in the FIR lodged by her under Section 498A/406/34 IPC, counsel submits that even if the appellant in the said FIR took a stand that the respondent had given her something to drink, the same will not make any difference vis-a-vis her stand in the matrimonial proceedings where she had stated that the respondent used to administer some medicines. Counsel thus submits that there was a minor variation in the stand of the appellant which would not amount to any kind of self contradiction on her part. Counsel thus states that there is clear infirmity and perversity in the findings of the learned trial court on this aspect and the same should be set aside.

4. Assailing the impugned judgment on another ground, counsel submits that the learned trial court has wrongly observed that the implication of the relatives of the respondent is in itself an act of cruelty against the respondent. The contention of the counsel for the appellant is that the mere fact that the said relatives were not charge sheeted by the police would not show that the allegations leveled by the appellant against the relatives of the respondent were false. The contention of the counsel is that at the stage of framing of charges, it would be for the concerned Criminal Court to see whether based on the allegations leveled by the appellant in her criminal complaint such relatives are required to be proceeded against or not.

5. Counsel for the respondent on the other hand refutes the submissions made by the counsel for the  appellant and submits that the present appeal deserves to be dismissed at the admission stage itself as the appellant has failed to point out any material illegality or perversity in the order passed by the learned trial court.

6. I have heard learned counsel for the parties.

7. The petition under Section 10 of the Hindu Marriage Act was preferred by the respondent husband so as to seek a decree of judicial separation from the appellant on the ground of cruelty. The marriage between the parties was solemnized according to Hindu rites and ceremonies on 5.11.2003 and both the parties are well educated academically. One of the allegations leveled by the respondent against the appellant is that the appellant had consumed some poisonous drink on 18.8.2004 and her condition became very critical in the morning of 18.8.2004 and she was immediately taken to Kailash Hospital, Noida and it is only on account of the timely action taken by the respondent and his parents that life of the appellant and the unborn child could be saved. It is an admitted case of  the parties that subsequent to the filing of the said petition by the respondent husband the appellant wife got registered one criminal complaint under Section 498A/406/34 IPC vide FIR No. 498/2005 not only against the respondent but his parents and some other relatives as well. Some of the relatives implicated by the appellant in the said complaint case were the residents of far off places like Saharanpur and Baroda. It is also an admitted case of the parties that the relatives of the respondent were not charge- sheeted by the police as no incriminating material was found against them during the course of investigation. The respondent has taken this false implication of his relatives on the part of the appellant as a ground of cruelty. Learned trial court has also granted decree of judicial separation in favour of the respondent and against the appellant taking the said two grounds clearly establishing the cruel conduct of the appellant towards the respondent. Before the learned trial court as well as before this court the appellant has failed to disclose as to what kind of medicines were being administered by the respondent to her during the stage of  pregnancy on the pretext of the same being good for her health and that of the unborn child. It is incomprehensible to accept the argument that the appellant who is a well qualified lady having a degree of Chartered Accountancy and Company Secretary would take the medicines without even knowing what kind of medicines she was taking. The appellant has also clearly taken a contradictory stand in her criminal complaint, wherein she stated that she was given something to drink by the respondent and his parents on the pretext that it is good for her pregnancy. The appellant has also not denied the fact that she was admitted to Kailash Hospital in the morning of 18.8.2004 where she was treated after having consumed some poisonous substance. It is also not in dispute that the appellant did not lodge any police complaint against the respondent or his parents complaining about administration of some poisonous medicines by her husband or his parents. The learned trial court has duly taken into consideration all these circumstances into account and thus has arrived at a finding that such an attempt by the appellant to commit suicide is an act of cruelty on her part upon her husband.

8. The concept of cruelty is of wide amplitude and has not been defined in the act. The Apex Court through various judicial pronouncements has explained the concept and scope of cruelty. It would be useful here to refer to the judgment of the Apex Court in the case of A. Jayachandra vs. Aneel Kaur AIR 2005 SC 534 where it was held as under:

"12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent."

Cruelty therefore is to be garnered taking the cumulative effect of all the factors into play. The parties are well educated and such an attempt to end her life by the appellant would certainly cause mental agony to the respondent. It would aggravate the case when the appellant tried to commit suicide in the state of pregnancy. A highly educated lady claiming that she was administered poisonous substance which she was unaware of does not help her case. No doubt in the petition the respondent did not give any specific reason or cause behind such suicidal attempt but it goes without saying that such an act even in the absence of any reason certainly would constitute an act of cruelty on the respondent husband.

9. Even on the second argument of the counsel for the appellant, this court does not find any merit in it. The complaint under Section 498A/406/34 IPC was lodged by the appellant during the pendency of the said petition filed by the respondent for judicial separation. In her complaint the appellant roped in various relatives of the respondent which include his uncle and aunt residing at Saharanpur and brother and sister in law residing at Baroda. The learned trial court is right in taking a view that false implication of relatives who were residing at far off places from the matrimonial home of the appellant and against whom there are no specific allegations of cruelty in itself is an act of cruelty by the appellant towards her husband. However, as these relatives were not charge-sheeted by the police the same would clearly show that the police did not find any incriminating material against these relatives during the investigation and this by itself is sufficient enough to show that the appellant had roped in and implicated all these relatives with vengeance to cause unnecessary harassment to them and such act certainly would cause cruelty to the husband with whom they are related. Implicating the relatives with a motive to harass the relatives, residing in different parts of the country, is nothing but a ruthless act of harassment. Therefore, the respondent husband has successfully proved cruelty on the part of the appellant on both the counts.

10. In the light of the above, this court does not find any infirmity or illegality in the findings arrived at by the learned trial court. There is no merit in the present appeal and the same is hereby dismissed at the stage of admission itself.

November 19, 2010 KAILASH GAMBHIR, J mg

http://lobis.nic.in/dhc/KG/judgement/26-11-2010/KG19112010MATA982010.pdf

http://www.indiankanoon.org/doc/477931/