Divorced women cant use x-name

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION
                                        WRIT PETITION NO. 8954 OF 2009

Neelam Dadasaheb Shewale .. Petitioner
Mr. Milind N. Jadhav i/b Mr. Sagar
G. Talekar for the Petitioner.

Vs.

Dadasaheb Bandu Shewale .. Respondent
Mr. R. T. Lalwani for the Respondent.

Bench: R. S. Dalvi
CORAM : MRS. R. S. DALVI, J.
DATE : 17TH FEBRUARY, 2010

JUDGMENT:

1. This writ petition challenges three interim orders passed in MJ Petition No.A1633/97 which was for enhancement of maintenance under 25 (2) of the Hindu Marriage Act.

2. It may be mentioned that an application under that provision can be filed only upon change in the circumstances of either party which would require modification of the order of permanent alimony passed.

3. Two orders are passed upon three applications of the parties.

4. One application was filed by the ex-husband (husband) seeking to restrain his ex-wife (wife) from using his surname (name) since divorce decree has been already passed and has became final. This application came to be filed as an interim application in the fresh petition filed by the wife after divorce.

5. The Advocate on behalf of the wife argued that the separate petition only should have been filed. Both these reliefs, permanent and interim, are between the same parties pursuant to the same marital relationship which has since ceased. Under Section 7 of the Family Courts Act the Family Court has jurisdiction to decide the petition-application as well as a suit or proceeding (permanent or interim), for injunction arising out of the marital relationship. The husband can, therefore, file a separate application/petition for injunction or take out an application in the wife's application/petition already filed. In fact, the husband can file a counterclaim in any petition with regard to any relief arising out of the marital obligation. An application which may be in the nature of counterclaim, can therefore be allowed an interim application.

6. The substance of the application is required to be considered rather than its form. The substance of the application of the husband is that the wife should not use his name.

7. The Advocate on behalf of the wife fairly concedes that since the marriage has been dissolved by a decree for divorce which has become final, the wife cannot use the name of the husband. That is the only substance to be considered by the Family Court. Under the impugned order dated 23rd September, 2009 the Family Court has considered that aspect as an application arising out of a marital relationship. It is correctly considered. The order needs no interference.

8. In fact, the Advocate on behalf of wife mentioned that the bank account of the wife stands in both her names. That statement itself shows that the wife uses the name of the husband even after their marital relationship has been dissolved by an order of the Court. The description of the bank account is therefore improper. It is, therefore, clarified that the wife cannot use the husband's name anywhere including in her bank account. The injunction granted by the Family Court in the application of the husband shall be effectuated for all purposes.

9. The writ petition also challenges another order of the same date between the same parties but in two different applications. One was the application filed by the wife for her to be represented by her constituted attorney on the ground that she is ill, does not know English, she has been mentally tortured at the hands of the husband and she would not be able to stand the court proceeding. The other application is filed by her constituted attorney asking for permission to represent the wife as she cannot financially afford a lawyer, lawyers are otherwise not permitted and that she would be entitled to assistance of the person she has faith in.

10.The legal right of a party in Family Court to be represented by her constituted attorney in place of her Advocate who is registered legal practitioner is required to be seen. Under Section 13 of the Family Courts Act no party is entitled as of right to be represented by a legal practitioner. However, the Court may appoint legal expert as amicus curie to assist her/him. A party has full right to appear before the Family Court. None can object to such appearance. The wife does not desire to have an Advocate. She has refused legal aid offered to her. She contends that she has faith only her constituted attorney. The extent of the right of a constituted attorney is laid down in Order III Rule 1 of the Civil Procedure Code as follows :
ORDER III :
1. Appearances, etc., maybe in person, by recognized agent or by pleader. - Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf :
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
(emphasis supplied)

11.What is appearance, application or act has been considered by Chief Justice Chagla, as he then was, in the case of Aswin Shambhuprasad Patel and others Vs. National Rayon Corporation Ltd. (AIR 1955 BOMBAY 262). The provision of the aforesaid order was considered taking into account the Bar Councils Act and the Bombay Pleaders Act. It has been held that the aforesaid rule would not apply where a law for the time being in force otherwise expressly provided. It is held that pleading is not included in the expression "appearance, application or act in or to any Court". This is so because, the right of audience in Court, the right to address Court, the right to examine and cross-examine the witnesses are dealt with in other parts of Civil Procedure Code and not under Order 3. It was further held right of audience in Court is a part of pleading in Court and not "acting" as provided under Order 3. It is further observed that a party in person would have a right of audience in Court and not his recognized agent who would be "appearing, applying or acting" on his behalf.

12.Further the right of pleaders to plead in a Court of law under authority of the client and to have a right of audience in Court as a member of Bar is not dealt with under Order 3. The members of the Bar have a right in clause 10 of the Letters Patent as they are qualified to plead in Court as required by specific legislation and rules. Under that clause no person except Advocates, Vakils or Attorneys would be allowed to act or plead for and on behalf of any suitor except the suitor himself. Considering Section 8 of the Bar Councils Act under which no person was entitled to practice as an Advocate unless his name was entered in the roll of Advocates, it was observed that the expression "practice" is wider than the expression "plead". Similarly Section 9 of the Bombay Pleaders Act, which was similar to the above section, was considered. The proviso to that section allowed a party to appear, plead or act on his own behalf but a recognized agent of the party was allowed to only appear or act (and not plead). It was therefore observed that proviso made a distinction between appearing, pleading or acting and appearing or acting. Whereas the party could do all three of the above her/his constituted attorney could do only the above two. Consequently it was held that in the District Courts a recognized agent had no right to plead by relying on provision 9 of the Bombay Pleaders Act. It was observed that the right of audience is a natural and necessary concomitant of the right to plead and as the recognized agent had no right to plead, it follows that he has no right of audience in Court.

13.The law that is laid down in the aforesaid judgment holds true and good till now and even within Section 13 of the Family Courts Act. The object of Section 13 of the Family Courts Act is to allow a party to represent her/his case and consequently right of the lawyer to plead, appear and have audience in Court is limited but the right given to the party to appear is not extended to that parties' constituted attorney. Hence, the general law of procedure under Order 3 Rule 1 as also the special laws contained in the Bar Councils Act and the Bombay Pleaders Act would apply even in a Family Court. The object of that provision is that only qualified persons are entitled to appear in Courts and represent the case of their parties. The qualification is of the knowledge of the law and the enrollment under the Act. If constituted attorneys of all the parties are allowed to appear, the Court would be overrun by any number of unqualified, unenrolled persons. Since Civil Procedure Code would generally apply to a Family Court under Section 10 of the Act, the restraint upon appearance under Order 3 of the Code must hold good.

14.In the case of Pavithra Vs. Rahul Raj (AIR 2003 MADRAS 138 it has been held that the recognized agent of the party in a Family Court proceedings cannot be allowed to prosecute it. Considering the various provisions of the Family Courts Act which follow the procedure different from the Civil Courts, it is observed that the parties themselves can be heard. Some times legal assistance can be provided. However, personal appearance of the parties is inevitable to comply with the mandatory provisions of the Family Courts Act. Though the authorized agent, who is not a legal practitioner can file a petition, he can only prosecute or defend it or represent the party only until the Family Court passes an order directing the party to appear in person depending upon the facts and stage of the case. In that case the constituted attorney sought permission to defend the case on the ground that she was not able to come to India to contest the case. Such a permission, it was held, could not be granted.

15.In the case of Sudha Kaushik Vs. Umesh prasad Kaushik (AIR 2005 GUJARAT 244) upon considering the law under normal circumstances as aforesaid it was held since that case the petitioner's life was in danger his father was allowed to represent his son in the interest of justice though it was held that in normal circumstances any citizen or party is not allowed to be represented by his power of attorney unless he is an Advocate of the Court.

16.Consequently both the orders of the Family Court, Bandra, Mumbai dated 23.09.2009 are correct and cannot be interfered with. Writ petition is dismissed.

(R. S. DALVI, J.)

G.O. to stop P.F. even after retirement of 498a Public/Govt. Servant (out-laws or in-laws)

Circular Memo.No.3026/18/A2/Pen.I/99 Finance & Planning (FW.Pen.I)Dept., dated 1-6-1999 : Disciplinary proceedings under Rule 9 of Revised Pension Rules, 1980 can continue after retirement even where there is no pecuniary loss to Government 

                             Subject Heading: Retirement — continuation of proceedings
                                                                   *****
According to sub-rule(1) of rule 9 of the A.P.Revised Pension Rules 1980, inter-alia, empowers the Government reserves to themselves the right of withholding pension or gratuity or both, either in full or in part, or withdrawing a pension in full or part whether permanently or for a specified period and of ordering
recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government if in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement.

2. The Government have been receiving representations seeking clarifications whether disciplinary proceedings pertaining to a serious or grave misconduct or negligence committed by a Government Servant can be continued or instituted in terms of rule 9 of the A.P.Revised Pension Rules, 1980 even if no pecuniary
loss was caused to the Government. Cir. No. (3419)

3. According to Ruling 8 under rule 9 of the Central Civil Services (Pension) Rules, 1972, action can be taken under Rule 9 of the Central Civil Services (Pension) Rules, 1972 (Similar to Rule 9 of Revised Pension Rules 1980) and as per the clarification issued by the Government of India, Department of Pension and
Training in O.M.No.28027/3/87-Estt(A), dated 29-6-1990 even in the absence of any pecuniary loss to Government, the pension of the pensioner can be withheld or withdrawn after following due procedure for an act of misconduct or negligence committed while in service.

4. The Supreme Court of India, in the case of ‘Union of India and others vs. B.Dev, AIR 1998 SC 2709, while explaining the scope of rule 9 of the Central Civil Services (pension) Rules, 1972 observed as follows:-
“Rule 9 gives to the President the right of 1) withholding or withdrawing a pension or part thereof; 2) either permanently or for a specified period; and 3) ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government. This power can be exercised if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. One of the powers of the President is to recover from pension, in a case where any pecuniary loss is caused to the Government, the Loss. This is an independent power in addition to the power of withdrawing or withholding pension. The condition of the respondent, therefore, that Cir. No. (349) Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government, is unsustainable”.

5. In view of the clarification given by the Government of India, Department of Pension and Training and the rulings of the Supreme Court, the Government hereby clarifies that disciplinary proceedings pertaining to a serious or grave act of misconduct/negligence committed by a Government Servant can be continued or instituted in terms of Rule 9 of Revised Pension Rules, 1980 or other corresponding rules, even if no pecuniary loss was caused to the Government.

sections which attracts corruption against 498a Public/Govt. servants (out-laws or in-laws)

(1) “Action” means any action taken by a public servant in the discharge of his functions as such public servant and includes decision, recommendation or finding or in any other manner and includes willful failure or omission to act and all other expressions relating to such action shall be construed accordingly;

(2) “Allegation” in relation to a public servant includes any affirmation that such public servant-
(a) has indulged in misconduct, if he is a government servant;
(b) has indulged in corruption

(3) “complaint” includes any grievance or allegation or a request by whistleblower for protection and
appropriate action.

(4) “corruption” includes anything made punishable under Chapter IX of the Indian Penal Code or under the Prevention of Corruption Act, 1988;
Provided that if any person obtains any benefit from the government by violating any laws or rules,
that person along with the public servants who directly or indirectly helped that person obtain
those benefits, shall be deemed to have indulged in corruption.

(5) “Government” or “Central Government” means Government of India.

(6) “Government Servant” means any person who is or was any time appointed to a civil service or post
in connection with the affairs of the Central Government or High Courts or Supreme Court either on
deputation or permanent or temporary or on contractual employment but would not include the
judges.

(7) “grievance” means a claim by a person that he could not get satisfactory redressal according to
citizen’s charter and despite approaching Public Grievance Officer of that Department;

(8) “Lokpal” means
a. Benches constituted under this Act and performing their functions as laid down under various provisions of this Act; or
b. Any officer or employee, exercising its powers and carrying out its functions and responsibilities, in the manner and to the extent, assigned to it under this Act, or under various rules, regulations or orders made under various provisions of this Act.
c. For all other purposes, the Chairperson and members acting collectively as a body;

(8A) “Minor penalty” and Major penalty” shall mean same as defined in CCS Conduct Rules.

(9) “Misconduct” means misconduct as defined in relevant Conduct Rules and has vigilance angle.

(10)"public authority" means any authority or body or institution of self- government established or constituted—
a. by or under the Constitution;
b. by any other law made by Parliament;
c. by notification issued or order made by the Government, and includes any body owned,
controlled or substantially financed by the Government;

(11)“Public servant” means a person who is or was at any time,-
(a) the Prime Minister;
(b) a Minister;
(c) a Member of Parliament;
(d) Judges of High Courts and Supreme Courts;
(e) a Government servant;
(f) the Chairman or Vice-Chairman (by whatever name called) or a member of a local authority in the control of the Central Government or a statutory body or corporation established by or under any law of the Parliament of India, including a co-operative society, or a Government Company within the meaning of section 617 of the Companies Act, 1956 and members of any Committee or Board, statutory or nonstatutory, constituted by the Government;
(g) all who are declared as “public servants” in Sec 2(c) of Prev’n of Corrup’n Act 1988.
(h) Such other authorities as the Central Government may, by notification, from time to time, specify;

(12)“Vigilance angle” includes –
(a) All acts of corruption
(b) Gross or willful negligence; recklessness in decision making; blatant violations of systems and procedures; exercise of discretion in excess, where no ostensible/public interest is evident; failure to keep the controlling authority/superiors informed in time

(c) Failure/delay in taking action, if under law the government servant ought to do so, against subordinates on complaints of corruption or dereliction of duties or abuse of office by the subordinates

(d) Indulging in discrimination through one’s conduct, directly or indirectly.

(e) Victimizing Whistle Blowers

(f) Any undue/unjustified delay in the disposal of a case, perceived after considering all relevant
factors, would reinforce a conclusion as to the presence of vigilance angle in a case.

(g) Make or undertake an unfair investigation or enquiry either to unduly help those guilty of corruption or incriminate the innocent.

(h) Any other matter as notified from time to time by the Lokpal

(13)“Whistleblower” is any person, who faces the threat of
(a) professional harm, including but not limited to illegitimate transfer, denial of promotion, denial of appropriate perquisites, departmental proceedings, discrimination or
(b) physical harm, or
(c) is actually subjected to such harm;
because of either making a complaint to the Lokpal under this Act, or for filing an application under RTI  Act, 2005 or by any other legal action aimed at preventing or exposing corruption or mal-governance.

CHAPTER IX - OF OFFENCES BY OR RELATING TO PUBILC SERVANTS
161 To 165A.- [Rep. By the prevention of Corruption Act, 1988(49 of 1988), sec. 31.]
166. Public servant disobeying law, with intent to cause injury to any person.- Whoever, being a public servant , knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or downing it to be likely that he will, by such disobedience, cause injur y to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
Illust ration
A, being an off icer directed by law to take property in execution , in order to satisfy a decree pronounced in Z‘s favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z.A has committed the offence defined in this section.

CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for 1 years, or fine or both- Non-Cognizable-Bailable-Triable
by any Magistr ate - Non- compoundable.
167.- Public servant framing an incorrect document with intent to cause injury.- Whoever, being a public servant, and being , as [such public ser vant, charged with 1 the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record] in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may ther eby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
1. Subs. by the Information Technology Act, 2000.sec. 91 and Sch.1, for certain words.

CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for 3 years, or fine or both- Non-Cognizable-Bailable-Triable
by any Magistr ate of the first class- Non- compoundable.
168. Public servant unlawfully engaging in trade.- Whoever , being a public servant and being legally bound as such public servant not to engage in trade , engage in trade, shall be punished with simple imprisonment for a term which may extend to one year , or with fine, or with both.

CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for 1 years, or fine or both- Non-Cognizable-Bailable-Triable
by any Magistr ate of the first class- - Non- compoundable.
169. Public servant unlawfully buying or bidding for property.- Whoever, being a public servant and being legally bound as such public servant, not to pur chase or bid for certain property , purchase or bids for that property , either in his own name or in the name of another,  or jointly , or bids for that property , either in his own name or in the name of another, or jointly, or in shares with other s , shall be punished with simple imprisonment for a term which may extend to two years , or with fine , or with both; and the property , if purchased , shall be confiscated.

CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for 2 years, or fine or both and confisication of property if purchased - Non-Cognizable-Bailable-Tr iable by any Magistrate of the first class- - Noncompoundable.
170. Personating a public servant.- Whoever pretends to holds any particular office a public servant , knowing that he does not hold such office or falsely personates any other person holding such office , shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for 2 years, or fine or both –Cognizable- Non-bailable- Triable
by any Magistr ate of the first class- - Non- compoundable.
171. Wearing garb or carrying token used by public servant with fraudulent intent.-
Whoever, not belonging to a certain class of public servants, wears any gar b or carries any token resembling any gar b or token used by that class of public servants , with the intention that it may be believed , or with the knowledge that it is likely to be believed , that he belongs to that class of public ser vants , shall be punished with imprisonment of either descr iption for a term which may extended to three months, or with fire which may extend to two hundred to two hundred rupees , or with both.

CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for 3 months ,or fine of 200 rupess, or both- Cognizable-Bailable- Tr iable by Magistrate- Non- compoundable.

1 CHAPTER IXA
171A. Candidate , Electoral right defined.- For the purpose of this Chapter-2 [(a) candidate means a person who has been nominated as a candidate at any election;]
(b) electoral right means the r ight of a per son to stand , or not to stand as, or to a withdraw from being ,a candidate or to vote or refrain from voting at any election.
____________________________________________________
1. 1. Chapter IXA ins. by Act 39 of 1920,sec.2.
2. 2. Subs. by Act 40 of 1975,sec.9, for clause(a)

171B. Bribery.- (1) Whoever-
(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such r ight; or
(ii) accepts either for himself or for any other person any gr atification as reward for exercising any such r ight or for inducing or attempting to induce any other person to exercise any such right;
commits the offence of bribery:
Provided that a declaration of public action shall not be an offence under this section.
(2) A person who offer s, or agrees to give , or offers or attempts to procure, a gratification shall be deemed to give a gratification.
(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done , shall be deemed to have accepted the gr atification as a reward.

171C. Undue influence at elections.- (1) Whoever voluntarily interfere or attempts to inter fere with the free exercise of any electoral right commits the offence of undue influence at an election.
(2) Without pr ejudice to the generality of the pr ovision of sub-section (1) , whoever-(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injur y of any kind, or
(b) induces or attempts to induce a candidate or voter to believe that he or any person in whim he is interested will become or will be r endered an object of
Divine displeasure or of spir itual censure,
shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter , within the meaning of sub- section (1).
(3) A declaration of public policy or a promise of public action , or the mere exercise of a legal r ight without intent to interfer e with an electoral right, shall not be deemed to be interference within meaning of this section.

171D. Personation at elections .- Whoever at an election applied for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name , or who having voted once at such election applies at the same election for a voting paper in his own name,  and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence or personation at an election.

171E. Punishment for bribery.- Whoever commits the offence of bribery shall be punished with fine ,or with both. Provided that bribery by treating shall be punished with fine only. Explanation .- Treating means that from of bribery where the gratification consists in food, drink , entertainment, or provision.

CLASSIFICATION OF OFFENCE
Punishment-Imprisonment for 1 years, or fine or both or if treating only-Non - Cognizable-Bailable-Triable by Magistrate of the first class- Non- compoundable.
171F. Punishment for undue influence or personatio n at an election.-Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.

CLASSIFICATION OF OFFENCE
Para I. Punishment-Imprisonment for 1 years, or fine or both or if treating only Non - Cognizable-
Bailable-Triable by Magistrate of the first class- Non- compoundable.
Para II.Punishment -Imprisonment for 1 years, or fine or both or if treating only-Non - Cognizable-
Bailable-Triable by Magistrate of the first class- Non- compoundable.
171G. False stat ement in connection with an election.- Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.

CLASSIFICATION OF OFFENCE
Punishment-Fine Non- Cognizable- Bailable-Triable by Magistrate of the first class-Noncompoundable.
171 H. False statement in connect ion with an election.- Whoever with intent to affect the result of an election makes or publishes any statement of fact which is false and which he either knows or believes to be false or does not believe to be true , in relation to personal character or conduct of any candidate shall be punished with fine.

CLASSIFICATION OF OFFENCE
Punishment-Fine Non- Cognizable- Bailable-Triable by Magistrate of the first class- Noncompoundable.
171H. Illegal payments in connection with an election.- Whoever without the general or special authority in wr iting of a candidate incurs or authorizes expenses on account of the holding of any pubic meeting , or upon any advertisement, circular or publication , or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate , shall be punished with fine which may extend to five hundred rupees:
Provided that if any persons having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate.

CLASSIFICATION OF OFFENCE
Punishment-Fine of 500 rupees Non- Cognizable- Bailable-Triable by Magistrate of the first
class- Non- compoundable.
171I. Failure to keep election accounts.- Whoever being required by any law for the time being in force or any rule having the force of law to keep accounts of expenses incur red at or in connection which an election fails to keep such accounts shall be punished with fie which may extend to five hundred rupees.]

CLASSIFICATION OF OFFENCE
Punishment-Fine 500 rupees- Non- Cognizable- Bailable-Triable by Magistrate of the first class-
Non- compoundable.

Absence petition for hearing opportunity under RTI - First Appeal

                     Absence petition for hearing opportunity - RTI  First Appeal 

Date:

From
Name
Address

To,
Name
Adress


Sir,

Ref: Appeal No.3/Secy. to VC-Peshi-5678/RTI Act/2012 – Date 18-07-2012

Adverting to the reference cited above, I thank you for the hearing opportunity given to me.
However, I cannot be present at the time and place as shown on the notice of hearing.

I prefer my appeal on the following grounds:

1) The PIO did not furnish the information as asked.

2) The PIO, instead of furnishing information, has repudiated his obligation through his reply by submitting “no action is warranted in this office”, whereas subject matter does not deserve this.

3) Further, the PIO, did not explain as to how the PIO is correct on his part.

4) The PIO, did not mention what Action Taken Report is obliged to furnish information or not.

5) The PIO is totally wrong and false on his part through his reply.

6) The PIO’s reply is dodgy and evasive.

7) The PIO did not give any reasons for rejection of the request for information as
required u/s 7(8)(i). [as held in CIC decision: CIC/OK/C/2006/00010 dated 7th July, 2006.]

8) Section 19(5) of RTI Act puts the onus of providing that a denial of request was justified on the part of PIO. No reasonable cause has been advanced for denying information to the Applicant.

9) The PIO’s reply is not certified as provided under RTI Law.

10) The PIO, failed to apprise the applicant about the onward appellate procedures and processes appeal as provided required u/s 7(8) (ii) & (iii)

In the light of the foregoing, I request you to kindly address my first appeal and arrange the needful in the merits of justice and in conformity with RTI Laws.

Thanking you,        Yours faithfully


        [                         ]

Divorce to wife for filing 498a false case & using filthy language amounts to cruelty - Dr. Seema vs Dr. Alkesh Chaudhary

Delhi High Court
Dr. Seema vs Dr. Alkesh Chaudhary on 31 January, 2011
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on : 01.11.2010

Judgment delivered on: 31.01.2011

MAT APP No. 19/2004

Dr. Seema ......Appellant Through: Mr. R.K. Kapoor and Mr.Varun Kumar

Advs.

Vs.

Dr. Alkesh Chaudhary ......Respondent Through: Mr. Ajay Goswami with Mr. Diwakar

Singh, Advs.

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.

*

1. By this appeal filed under Section 28 of the Hindu Marriage Act, 1955 the appellant seeks to challenge the judgment and decree dated 5.2.2004 passed by the court of  the learned ADJ whereby a decree of divorce was passed in favour of the respondent and against the appellant.

2. Brief facts of the case relevant for deciding the present appeal are that the parties got married on 17.4.1992 at Delhi according to Hindu rites and ceremonies and a child named „Samir‟ was born out of the said wedlock on 22.5.1996. The respondent alleged that the appellant did not fulfill her marital obligations and was cruel to him from the very beginning of their marriage. Therefore a petition for divorce under section 13(1) (ia) was filed by the respondent which vide judgment and decree dated 5.2.2004 was decreed in favour of the respondent and against the appellant. Feeling aggrieved with the same, the appellant has preferred the present appeal.

3. Mr. R.K. Kapoor, counsel appearing for the appellant contended that the appellant and the respondent were maintaining very happy and cordial relations and such a relationship is well reflected from the letters sent by the respondent to the appellant during the period from 14.11.1994 to 22.5.1995. Elaborating his arguments, counsel further contended that even if any alleged act of cruelty was committed by the appellant prior to the said date, the same stood condoned by the passionate letters sent by the respondent to the appellant. The other limb of argument taken by the counsel for the appellant was that a child was born out of the said wedlock on 22nd May, 1996, which would show that the child must have been conceived by the appellant somewhere in the month of August, 1995 and at least till the month of August, 1995 the relationship between the parties can be presumed to be cordial and congenial and if any alleged act of cruelty has been committed by the appellant prior to the said date of conception that also stands condoned when the said child was conceived by the appellant wife in August, 1995.

4. Counsel further contended that so far the tape recorded conversation proved on record by the respondent as Ex. PW- 1/60 is concerned, the same by itself cannot be taken as an act of cruelty committed by the appellant based on which the decree of divorce can be granted. Counsel also submitted that the tape recorded conversation was recorded by the respondent with mala fide intentions so as to create evidence in his favour which is borne out of the fact that the respondent had filed the divorce petition just within a gap of about 15 days from the date of the said tape recorded conversation. Counsel also submitted that admittedly both the parties were living together till 28th October, 1996 and divorce petition was filed by the respondent on 9th January, 1997 and except the said tape recorded conversation no other act of cruelty has been complained of by the respondent in the divorce petition. Counsel further submitted that no doubt a criminal complaint was filed by the appellant in July, 1997 before the Crime Against Women Cell, Nanakpura after filing of the divorce petition but any allegation leveled by the appellant in the said complaint cannot be taken into consideration as the said complaint was not pursued by the appellant and no arrest of the respondent or his family members was made pursuant to the lodging of the said complaint by the appellant. Counsel thus submitted that even in the absence of any evidence led by the appellant, the respondent failed to establish his case to prove the ground of cruelty envisaged under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Alternatively, the counsel submitted that even if any act of cruelty is taken to have been committed by the appellant then the same already stood condoned by the respondent due to his subsequent conduct. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Apex Court in Dastane Vs. Dastane AIR 1975 SC 1534.

5. Mr.Ajay Goswami, counsel for the respondent, refuting the said submissions of the counsel for the appellant submitted that the behaviour of the appellant throughout has been very cruel towards the respondent and this would be evident from the fact that the respondent had to send a legal notice in August, 1993 i.e. just after 1 ½ years from the date of the marriage. Counsel further submitted that since the appellant had committed various acts of cruelty after the said love letters written by the respondent to the appellant, therefore, all the previous acts of cruelty of the appellant would get revived. Counsel also submitted that the respondent has proved on record the said tape recorded conversation and the kind of language used by the appellant towards the respondent as well as his family members would clearly show the attitude of the appellant towards the respondent and his family members. The contention of the counsel for the respondent was that the abusive language used by the appellant in the said conversation caused mental cruelty to the respondent. Counsel further submitted that the appellant did not join the company of the respondent at the matrimonial home at Greater Kailash after his return from Chennai in October, 1995 and this also caused cruelty to the respondent. Counsel thus submitted that no fault can be found with the judgment of the learned trial court and the same should be upheld.

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

7. The present case concerns the matrimony of two doctors who could not fulfill their marital obligations towards each other due to irreconcilable differences. The marriage between the parties took place on 17.4.1992 and right from the date of inception of the marriage, problems arose between them which led to the service of a legal notice by the respondent upon the appellant just within a period of one and a half years from the date of the marriage. However, they still managed to sail through somehow but ultimately a divorce petition was preferred by the respondent under Section 13 (1) (ia) of the Hindu Marriage Act in 1997. Serious allegations of mental cruelty were leveled by the respondent against the appellant and all such allegations were also proved by the respondent in his evidence. The respondent was cross examined by the appellant at length and as per the finding of the learned trial court, not even a single suggestion was given by the appellant to discredit the testimony of the respondent in his cross examination with regard to the various incidents of cruelty committed by the appellant. It is also a matter of record that the appellant failed to lead any evidence either to refute the allegations leveled by the respondent or to place on record her side of the story before the court. In this background of facts, the learned trial court proceeded with the matter taking the allegations leveled by the respondent against the appellant as correct.

8. Mr. R.K. Kapoor, learned counsel appearing for the appellant very fairly submitted that he would also proceed to argue the matter taking the allegations leveled by the respondent as correct but would impress upon this court that all such acts of cruelty, even if they are accepted as correct, were condoned by the respondent by his subsequent conduct. In such a background this court will proceed in the matter taking the entire gamut of allegations of cruelty leveled by the respondent against the appellant as correct and then examine the contention of the counsel for the appellant whether those acts of cruelty were condoned by the respondent by his subsequent conduct. As per the counsel for the appellant, two subsequent acts of the respondent would MAT APP No. 19/2004 Page 8 of 32 clearly show that the previous acts of cruelty committed by the appellant stood condoned by the respondent. With the birth of the child on 22.05.1996, it would be quite apparent that there was resumption of conjugal relations between the parties, the counsel contended. The contention of the counsel for the appellant was that at least till the month of conception, which must be somewhere in the month of August 1995, the pervious acts of cruelty, even if they are taken to have been committed by the appellant, stood condoned by the respondent. The second act of condonation claimed by the counsel for the appellant was that between 14.11.1994 to 22.5.1995, various letters were written by the respondent, which were proved on record as Exs. RW1/R1 to R 31. The contention of the counsel was that these letters were written so passionately by the respondent and had there been any complaint by the respondent against the appellant on account of her cruel conduct then the respondent husband could not have written such letters displaying his love, sentiments and passion for the appellant. Counsel thus urged  that all the previous acts of cruelty, if any, committed by the appellant stood condoned by the respondent by writing said letters to the appellant. Counsel thus submitted that the said two subsequent acts of the respondent would clearly show that not only there was resumption of conjugal relationship between the parties but would clearly show that the respondent had completely condoned the previous acts of cruelty, if any, committed by the appellant towards the respondent.

9. So far the subsequent acts of cruelty alleged to have been committed by the appellant are concerned, the counsel submitted that the tape recorded conversation, on which reliance was placed by the learned trial court, the same by itself cannot be taken as an act constituting cruelty as such conversation was recorded by the respondent with the sole objective to create evidence in his favour before filing divorce petition as the said tape recorded conversation was recorded by the respondent within a short gap of about 15 days before the presentation of the divorce petition by him.  Counsel thus submitted that the said tape recorded conversation was doctored by the respondent in a manner so that the appellant could be shown in poor light in her utterances without correctly highlighting the fact that under what circumstances she was responding in that particular manner. Counsel thus submitted that the learned trial court has wrongly given undue weightage on self serving evidence adduced by the respondent. Counsel also submitted that the learned trial court also wrongly placed reliance on the criminal complaint filed by the appellant with the Crime Against Women Cell despite the fact that the appellant did not pursue the said criminal complaint and such a conduct of the appellant would further show that she never wanted to create any kind of disharmony in the marital relationship.

10. The correctness and veracity of the testimony of any witness can only be tested through his cross examination. Section 138 of the Indian Evidence Act, 1872 therefore, confers a very valuable right on a party to cross-examine a witness who enters the witness box to support the case of one of the parties. It is an admitted fact between the parties that not only the appellant failed to impeach the creditability or creditworthiness of the testimony of the witnesses produced by the respondent, especially the respondent himself, with regard to the alleged incidents of cruelty committed by the appellant but the appellant even did not care to lead any evidence to counter the case of the respondent. The counsel for the appellant very fairly conceded this position and therefore, urged that he will press his plea of condonation on the part of the respondent due to his subsequent acts and also the plea that the acts of cruelty alleged to have been committed by the appellant after the condonation of pervious acts of cruelty cannot be treated as „cruelty‟ as envisaged under Section 13(1) (ia) of the Hindu Marriage Act.

11. First dealing with the concept of condonation, it was defined by the Apex Court in the case of Dastane Vs. Dastane, 1975 SC 1534, where it held that: "Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things forgiveness and restoration."

12. It is also a settled legal position that there cannot be condonation if the offending spouse continues to indulge in the commission of further acts of cruelty either physical or mental. Either a temporary stay or even resumption of conjugal rights though may be strong circumstances to infer condonation on the part of the offending spouse but the same by itself would not be sufficient to draw an inference of condonation unless such a stay and resumption of conjugal relationship is with an intent to restore back the marital relationship with a sense of forgiveness and consequently not to indulge in either repeating the previous acts or to inflict more cruelty. In the present case, the counsel for the appellant stated two instances which he contended were acts from which condonation can be clearly inferred. First, was the birth of the child on 22.5.96 and second was the writing of the passionate letters by the respondent to the appellant from 14.11.94 to 22.5.95.


13. Dealing with the first instance, the birth of the child "Samir" took place on 22.5.96 which means that the appellant must have conceived in the month of August 1995. It can be thus inferred that till August 1995 the parties had normal sexual relationship and that it was not one stray act of intimacy that must have led to the conception of the child. It would be useful here to refer to the observations of the Apex Court in Dastane vs. Dastane (supra) where in similar facts it was held that:
     "57. The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite the respondent's - acts of cruelty. This is not a case where the spouses, after separation, indulged in a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be said to be lacking. Such stray acts may bear more than one explanation. But if during co-habitation the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse to the original status may reasonably be inferred. There is then no scope for imagining that the conception of the child could be the result of a single act of sexual intercourse and that such an act could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as well imagine that the sexual act was undertaken just in order to kill boredom or even in a spirit of revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore, evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one spouse is proof that the other spouse condoned that cruelty.  Intercourse, of course, is not a necessary ingredient of condonation because there may be evidence otherwise to show that the offending spouse has been forgiven and has been received back into the position previously occupied in the home. But intercourse in circumstances as obtain here would raise a strong inference of condonation with its dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not having explained the circumstances in which he came to lead and live a normal sexual life with the respondent, even after a series of acts of cruelty on her part."

14. Thus it is evident from above and also from the facts of the case at hand that the respondent had condoned the acts of cruelty complained of before August 1995. The conception of the child is thus an unflinching proof of condonation of the acts of the offending spouse. Coming to the second act, the 32 love letters written by the respondent husband to the appellant, which are proved on record, are from the period 14.11.1994 to 22.5.1995. A perusal of the said letters shows that the respondent had no complaint from the appellant and thus had condoned all her previous acts of cruelty. Therefore, the cumulative effect of both the above acts show that the respondent had condoned the cruel acts of the appellant prior to August 1995 and therefore if the acts of cruelty , if any as alleged by the respondent, to establish the ground of cruelty have to be looked into pertaining to the period only after August, 1995.

15. The acts of cruelty after August, 1995 committed by the appellant as alleged by the respondent can be succinctly stated as under:

 The respondent was locked by the appellant three times in August,1995
 On the respondent extending a reciprocal invitation for dinner to Appaswamy on 3.9.95 in Chennai, the appellant created a scene and locked the house and the guests had to return seeing the house locked  On the day of Diwali, which was on 23.10.95, the respondent was casually asked by Mr. & Mrs. Taneja (in -laws of the brother of the respondent) to do an eye check up on which the appellant raised hue and cry causing embarrassment to the respondent
 That the appellant after the delivery of the child stayed at her parents place and due to her callous attitude  towards the new born, the child got dengue on 17/19.10.96
 That the appellant refused to come back to the matrimonial home and put a condition that only when the house at Greater Kailash Enclave would be transferred in the name of the appellant would she return to the matrimonial house
 That the appellant left the matrimonial house on 28.10.96, one day before karva chauth which is an auspicious festival of the Hindus where the wife observes a fast for the husband
 That the appellant had refused to have sexual intercourse with the respondent after 8.10.1996  That the appellant filed a criminal compliant in the Crime Against Women Cell, Nankpura against the respondent in July, 1997
 That the appellant used filthy and abusive language for the respondent and his family members in the telephonic tape recorded conversation on 23.12.1996 which is proved on record as Ex PW1/59 and PW1/60

16. The above acts of cruelty were duly proved by the respondent in his evidence and by producing 4 other witnesses. It is an admitted case between the parties that the appellant did not enter the witness box to present her side of the story. The learned trial court has also categorically observed that the respondent was not cross examined on any of the above mentioned acts of cruelty by the appellant. It is a settled legal position that where the evidence of the witness is allowed to go unchallenged with regard to any point, it may safely be accepted as true. Here it would be pertinent to refer to the observations of the Apex Court with regard to the importance of cross examination in the case of Rajinder Pershad vs. Darshana Devi (2001) 7 SCC 69 where it was held that :

"There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach  his credit. In State of U.P. v. Nahar Singh (dead) : 1998CriLJ2006 , a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed :

The oft quoted observation of Lord Hershell, L.C. in Browne v. Dunn clearly elucidates the principle underlying those provisions. It reads thus :

"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lord, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; arid, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play arid fair dealing with witnesses."

17. Thus as the appellant herself has neither contradicted the alleged acts of cruelty of the respondent to have impeached his testimony and has also chose not to enter the witness box to dispute the correctness of the allegations  leveled by the respondent, this court would thus proceed assuming the above stated alleged acts of cruelty as true.

18. Section 13(1)(ia) of the Hindu Marriage Act, 1955 provides for „cruelty‟ as a ground for the dissolution of marriage. Cruelty has no where been defined in the act, and rightly so, as it is difficult to put the concept in a strait jacket formula. It may be physical or mental, intentional or unintentional. In the present case, the respondent has alleged that the acts of the appellant caused him mental cruelty. Mental cruelty can be more harmful than physical cruelty as sometimes even a gesture, the angry look, a sugar coated joke, an ironic overlook may be cruel than actual beating. Here it would be useful to refer to the judgment of the Apex Court in the case of Vinita Saxena vs. Pankaj Pandit where it was held that:

"23. As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.

24. The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition page 270:- The general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from the point of view. In

determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status."

19. Hence, the Apex Court has observed in a catena of judgments, including the above, that cruelty has to be inferred from the facts and circumstances of each case and what may be cruelty in one case may not be cruelty in the other. However the benchmark to judge the conduct of the spouse inflicting cruelty would be that it cannot be expected of parties to live with each other anymore due to the cruel conduct of one of the spouse. It has to be something more than the ordinary wear and tear of married life and has to touch a pitch of severity. The court has to be satisfied that the relationship between the parties has deteriorated to such an extent that it would be impossible for the parties to live with each other. Here it would be worthwhile to refer to the judgment of the Apex Court in the case of Naveen Kohli vs. Neelu Kohli AIR 2006 SC 1675 where it was held that: "56.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 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.

57. 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."

20. The Apex Court in the case of Jaya Ghosh vs. Samar Ghosh (2007)4 SCC 511 analysing all the case laws of India and other countries with regard to mental cruelty enlisted a non exhaustive list of the instances which can be considered as instances inflicting mental cruelty. Giving a treatise on mental cruelty the Apex Court held that: "72. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.

73. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration."

21. Therefore, it would be manifest from the above that cruelty has to be inferred from the social status, upbringing and educational qualifications of the parties. In the facts of the present case, the parties are highly qualified doctors enjoying good social status. In the background of this fact, the conduct of the appellant has to be examined in the present case. The two main acts of cruelty are the tape recorded conversation of the appellant and the filing of the criminal compliant by the appellant against the respondent. With regard to the tape recorded conversation, the learned trial court in para 58 of the judgment has clearly observed  that the kind of language used by the appellant in her conversation cannot be expected from a very qualified doctor belonging to a reputed family. The learned trial court also observed that the language used by the appellant against the respondent constitutes an act of mental cruelty. It would be appropriate to reproduce relevant paras of the impugned judgment as under:

"58. I have gone through the transcription of this tape recorded conversation. From the transcription it is clear that respondent has used the word "Harmjada" for petitioner as well as his parents. She has also addressed him as "Zanvar". She has also stated that she is not interested in his patient/business. she is bent upon to ruin him. No question has been asked to the petitioner on behalf of the respondent in his cross-examination when he appeared in the witness box in this regard, no suggestion has been given to falsify it, no suggestion has been given with regard to the circumstances in which conversation has been tape recorded. Respondent has not appeared in the witness box to explain/refute the tape recorded conversation.

59. It is argued on behalf of the respondent that this tape recorded conversation cannot be relied upon because petitioner provocated the respondent with the malafide intention and ulterior motive to create evidence in his favour and put words in the month of respondent. He immediately filed the present petition after getting the conversation between the respondent and him tape recorded.

60. Parties are highly qualified. Petitioner and respondent are renowned Doctors of Delhi. Admittedly, respondent belongs to highly educated and respectable family, her two other sisters and brother-in-law are also  Doctor according to the respondent herself. Her father is a Class-I Gazetted Officer. Use of such language cannot be expected from a highly qualified Doctor belonging to a reputed family. The language shows the feeling of the respondent towards the petitioner. According to the social status and educational level of the parties, the language used by respondent against the petitioner is enough to constitute mental cruelty towards the petitioner."

22. I do not find any infirmity or illegality in the abovesaid findings of the learned trial court. I also do not subscribe to the argument of the counsel for the appellant that the said tape recorded conversation was recorded by the respondent to create an evidence in his favour as it was for the appellant to have used decent and temperate language not only for the respondent i.e. her husband but for his parents as well. In any event of the matter, it was for the appellant to have explained under what circumstances such utterances were made by her in the said tape recorded conversation. But since the appellant did not appear in the witness box, therefore, adverse inference has to be drawn against the appellant and in favour of the respondent.

23. The other act of cruelty is the filing of the criminal complaint by the appellant against the respondent in the  Crime Against Women Cell. The argument of the counsel for the appellant was that filing of the complaint cannot be considered as it was not pursued by the appellant which shows that the appellant did not want to create any disharmony in the matrimonial relations. This argument of the counsel for the appellant is totally devoid of any merit and deserves outright rejection. The respondent in his testimony deposed that he was called to the police station time and again and was harassed by the police after filing of the said compliant by the appellant , on which point the appellant did not cross examine the respondent and even did not enter the witness box to rebut the statement. Hence, the argument of the counsel for the appellant does not appeal to commonsensical notions that the filing of the criminal complaint did not cause harassment to the respondent simply because of the fact that it was not pursued by the appellant.

24. These two above acts are certainly grave acts which were capable of causing mental cruelty to the respondent. The other above enumerated acts, such as the behaviour of the appellant on the auspicious days of the Hindus like Diwali and Karva Chauth would add to causing serious mental pain to the respondent. The refusal of the appellant for sexual intercourse also contributes to inflicting further cruelty on the respondent. Hence, looking into totality of the circumstances, this court is of the clear view that the respondent has proved cruelty on the part of the appellant as envisaged under section 13(1) (ia) of the Hindu Marriage Act.

25. Now dealing with the other argument of the counsel for the respondent that even though the acts of cruelty were condoned by the respondent, but the same would stand revived by the subsequent acts of the appellant, the learned trial court held that even if it is presumed that the respondent had condoned the past acts of cruelty on the part of the appellant ,the same got revived when a false criminal complaint was lodged by the appellant with Crime Against Women Cell and also because of the said abusive language used by the appellant in said tape recorded conversation. Condonation is a bar to the filing of a petition for divorce as envisaged under section 23(1) (b) of the act and thus if the cruelty is condoned by the respondent, he cannot be allowed to claim a decree of divorce. However, it is a settled principle of law that the previous acts of cruelty will get revived when the offending party keeps committing or repeating the acts of cruelty towards the other spouse even after the condonation. It was held by the House of Lords in Henderson vs. Henderson (1944) 1 All ER 44 that condonation is subject to the implied condition that if the spouse who has been forgiven for the past matrimonial offences is proved to commit a further matrimonial offence in the future, then the past offences are revived and become available as further ground for divorce. In the case of K.J vs. K.J AIR 1952 Nagpur 395, the Full Bench of the Nagpur Bench of the Bombay High Court held that:

"13. We shall now consider the question whether there has been condonation in the case.
.........
..an express promise is not necessary. It is implicit in every case where the husband forgives the wife and receives her once again as his companion in life. But even though the promise may be explicit or may be implicit in the very act of forgiving, it is not to be expected that the offence would be repeated. Indeed, the law is that if the offence is repeated or anything having the semblance of its future repetition is present, the original guilt of the erring partner is revived."

26. Hence, the law is well settled that the petitioner would not be barred from filing a petition of divorce if the offending spouse does not digress from her piquing conduct. It would be useful here to refer to the celebrated pronouncement of the Apex Court in Dastane vs. Dastane (supra) where the law was explicitly explained as under: "58. But condonation of a matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. "No matrimonial offence is erased by condonation. It is obscured but not obliterated" See Words and Phrases Legally Defined (Butterworlhs) 1969 Fd., Vol I, p. 305, ("Condonation") Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence See Halsbury's Laws of England, 3rd Ed., Vol. 12, p. 3061. Condoned cruelty can therefore be revived, say, by desertion or adultery."

27. Hence, it would be manifest from above that the condition involved in case of revival of offence after condonation is not only that the same matrimonial offence will not be committed but also that the condoned spouse will in  future fulfil in all respects the obligations of marriage. In the present case it is clear that despite forgiveness and tolerance on the part of the respondent, the appellant continued her vicious behaviour. From her callousness and brutal remarks about the respondent and his family members, it is clear that her cruelty continued and the previous acts also stood revived in the face of such a conduct. Even though the respondent by resuming connubial relations and showing overtures of forbearance had explicitly condoned the acts of cruelty prior to August, 1995, but in the face of the subsequent conduct of the appellant, the acts of cruelty would stand revived and the respondent would be entitled to the decree of divorce.

28. Before parting with the judgment, I would like to point out that this court found a ray of hope in this case by looking at the amorous epistles of the respondent and considering that the parties have a child whose future would be marred in the operoseness of the legal battle, and sent it for mediation, but in vain. The asset of a wholesome education broadens the horizons and instills the virtues of tolerance, empathy and understanding in persons and it was expected of the parties, who are highly educated, to make peace with their past and carve out their future together on a clean slate. Unfortunately, the social status and the qualifications became an anathema for the parties in which the child would bear the brunt of clashing egos. The stark realities of matrimony stare in the face through such cases evincing the vagaries and vicissitudes of, once rock steady and now fragile institution that is marriage. More often than not, in cases like the present one, the acrimony of the spouses dims the hope of eternity of the holy union into nothingness.

29. In the light of the above, I do not find merit in the present appeal and the same is hereby dismissed.
JANUARY 31, 2011
KAILASH GAMBHIR, J rkr/mg

Divorce to wife for suicide threats amounts to cruelty - Pankaj Mahajan vs Dimple @ Kajal

Supreme Court of India
Pankaj Mahajan vs Dimple @ Kajal on 30 September, 2011
Author: P.Sathasivam
Bench: P. Sathasivam, B.S. Chauhan
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8402 OF 2011

(Arising out of S.L.P. (Civil) No. 29641 of 2009) Pankaj Mahajan .... Appellant(s) Versus

Dimple @ Kajal .... Respondent(s) J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) This appeal is directed against the final judgment and order dated 06.08.2009 passed by the High Court of Punjab & Haryana at Chandigarh in FAO No. M-123 of 2006 whereby the High Court allowed the appeal filed by the respondent herein and set aside the judgment and decree dated 29.04.2006 passed by the Additional District Judge(Ad-hoc)- cum-Presiding Officer, Fast Track Court, Ropar filed under Section 13 of the Hindu Marriage Act, 1955 (in short `the Act'). 1

3) Brief facts:

(a) The marriage of Pankaj Mahajan-appellant husband and Dimple @ Kajal, respondent-wife, was solemnized on 02.10.2000 at Amritsar. After the marriage, the parties cohabited and resided together as husband and wife at Amritsar in the parents' house of the appellant-husband, but later on shifted to a rented house in Tilak Nagar, Shivala Road, Amritsar. On 11.07.2001, a female child was born, who is now in the custody of the respondent-wife.

(b) After the marriage, the appellant-husband found that the respondent-wife was acting in very abnormal manner, as she used to abruptly get very aggressive, hostile and suspicious in nature. In a fit of anger, she used to give threats that she would bring an end to her life by committing suicide and involve the appellant-husband and his family members in a criminal case, unless she was provided a separate residence. On one occasion, she attempted to commit suicide by jumping from the terrace but was saved because of timely intervention of the appellant-husband.

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(c) Succumbing to the pressure of the respondent-wife, the appellant-husband shifted to a rented house on 28.11.2001 at a monthly rent of Rs.3,200/- and started living with her, but the behaviour of the respondent-wife became more aggressive and she repeated threats of suicide even in the rented house. On enquiry, the appellant-husband came to know that the respondent-wife was suffering from acute mental depression coupled with schizophrenia even prior to the marriage and was taking treatment for the same. The appellant-husband hoping that the respondent-wife would become alright took her to various doctors, but her mental condition did not improve and she became more and more violent and aggressive. She insulted and humiliated the appellant-husband in front of his colleagues and relatives several times and even on one occasion she pushed the appellant-husband from the staircase causing fracture in his right forearm.

(d) On 23.03.2002, the appellant-husband wrote a letter to his mother-in-law stating therein that the respondent-wife was repeatedly threatening to commit suicide and even on 19.04.2002, he wrote a letter to the SSP, Amritsar regarding 3

the factum of repeated threats to commit suicide given by the respondent-wife. On 24.05.2002, the appellant-husband filed a petition under Section 13 of the Act in the District Court at Amritsar for dissolution of marriage by a decree of divorce. By order dated 29.04.2006, the Additional District Judge, Ropar, granted a decree of divorce in favour of the appellant-husband. (e) Being aggrieved by the above-said order, the respondent- wife filed FAO No. M-123 of 2006 before the High Court of Punjab & Haryana at Chandigarh. The High Court, by order dated 06.08.2009, allowed the appeal filed by the respondent- wife and set aside the judgment and decree dated 29.04.2006 passed by the Additional District Judge(Ad-hoc)-cum- Presiding Officer, Fast Track Court, Ropar. Aggrieved by the said decision, the appellant-husband has preferred this appeal before this Court by way of special leave petition. 4) Heard Mr. Nidhesh Gupta, learned senior counsel for the appellant-husband and Mr. B.K. Satija, learned counsel for the respondent-wife.

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Discussion:

5) It is not in dispute that the petition for dissolution of marriage for granting a decree of divorce under Section 13 of the Act came to be filed by the appellant-husband before the District Court at Amritsar. The marriage was solemnized between the parties at Amritsar on 02.10.2000. Since the case of the appellant-husband as well as the respondent-wife has already been narrated, there is no need to traverse the same once again. The fact remains that it was the appellant- husband who approached the court for a decree of divorce on the grounds of `cruelty' and `unsound mind' of the respondent- wife which is incurable, hence we have to see whether the appellant-husband has made out a case for divorce on these grounds.

6) Section 13 of the Act, which is useful for our present purpose, reads as under:-

"13. Divorce (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-- (i) xxx

(i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) xxx

(ii) xxx

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(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation .--In this clause,--

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;....."

Section 13 specifies the grounds on which a decree of divorce may be obtained by either party to the marriage. The onus of proving that the other spouse is incurably of unsound mind or is suffering from mental disorder lies on the party alleging it. It must be proved by cogent and clear evidence.

7) In the case on hand, since the appellant-husband has approached the District Court for a decree of divorce, the onus is on him to prove the grounds put-forth by him. As regards the ground alleged by the appellant-husband for a decree of divorce i.e. the respondent-wife is suffering from unsound mind/mental disorder/schizophrenia, apart from his own evidence as PW-4, various Doctors, who treated her and other witnesses were also examined. From the side of the appellant- husband, Dr. Paramjit Singh (PW-1), Dr. Ravinder Mohan Sharma (PW-2), Dr. Virendra Mohan (PW-3) and Dr. Gurpreet 6

Inder Singh Miglani (PW-7), who had given treatment to the respondent-wife for mental disorder, were examined. 8) Dr. Paramjit Singh (PW-1), Professor and Head Psychiatry Department, Medical College, Amritsar in his evidence stated as follows:-

"The respondent remained admitted in my Department at Amritsar from 17.12.2001 to 28.12.2001. This disease is Bipolar Affective Disorder. I treated her during this period. She was admitted in Emergency because her disease was in quite serious stage. In this disease, the patient can commit suicide. When she came, she was aggressive and irritable. If the proper treatment is not given to the respondent then her aggressive nature can be prolonged. The respondent Kajal was treated by me by giving electric shock for four times during her stay in the ward M.R.I. i.e. Magnetic Resonance Imaging. MRI has got no concern with the disease with which the respondent was suffering. This disease is treatable but not curable. I have seen the certificate issued by me which is Ex.P1. It bears my signatures and is correct Ex. P2 i.e. Discharge Certificate. I have brought the original record of the Department concerning the respondent both in- door as well as out-door. A certified copy of the same attested by me is Ex. P3. These are correct according to the original record brought by me today in the court. The respondent was brought to the Hospital for her admission and treatment by Sh. S.K. Mahajan son of later Sh. Gian Chand and Pankaj Mahajan. I have seen the receipts today in the court which relate to our hospital and the same are Ex. P4 to Ex. P7 and Ex. P8 is the receipt regarding room rent of our Hospital. On 08.10.2002, father of the respondent had brought her to our hospital and she was treated by me as well as other doctors of department of our hospital from 08.10.2002. After the discharge from the Hospital, the respondent was brought to our hospital for treatment by her father on 22.01.2002, 02.02.2002, 09.02.2002, 15.04.2002, 08.08.2002, 08.10.2002, 21.11.2002, 05.02.2003 and 20.06.2003."

(Emphasis supplied)

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In cross-examination, he admitted that when the respondent- wife was discharged from the hospital, she was not perfectly alright, however, she was able to return home. He further admitted that in the original record of Ex. P3 some entries were made by him and some by junior doctors, who worked with him. All the entries made therein are correct. He also stated that during the treatment, he did not notice abnormal behaviour of the respondent-wife.

9) Dr. Ravinder Mohan Sharma (PW-2), Senior Medical Officer, Punjab Mental Hospital, Amritsar, stated as under: "According to file No. 57914 the patient was examined in the out door by Dr. Charu Chawla, Senior Resident whose handwriting I identified as she has been working with me. After examining the patient and recording the history, she has diagnosed her to be a case of Bipolar Affective Disorder with which I agreed and advised her treatment in my own hand. There is another entry dated 16.01.2002 again in my own hand where I had advised her treatment. The second file No. 58803 is in the hand of Dr. Purnima Singh, who after examining presented the case to Dr. Manjit Singh who made a diagnosis of depressive episode and advised her medical treatment dated 21.02.2002. I identified the handwriting of Dr. Purnima Singh and Dr. Manjit Singh as I had been working with them. I have seen the original outdoor ticket of respondent and the same are Ex. P11 and Ex. P12. As per the history recorded in file No. 58803, there is a mention of suicide ideas and threats and it is recorded that she had attempted suicide once. As per the record, hers is a history of abusive and irritable behaviour. On 16.01.2002 she was advised injection by me because she was irritable and restless. It is not a simple yes or no answer to the question 8

whether the disease is curable or not. It is an episodic illness which patient getting episodes of mental illness and with treatment in between she can remain normal. The intensity and frequency of these episodes is highly unpredictable and varies from patient to patient. Generally, the frequency increases with every episode. The disease of the respondent is treatable but cannot be definitely say curable. MRI has got nothing to do with this disease of respondent." (Emphasis supplied) In cross-examination, he reaffirmed what he had stated in examination-in-chief.

10) Dr. Virendra Mohan (PW-3), M.D. Psychiatry, Dharampur, District Solan, H.P. stated as follows:- "Patient Dimple, aged 23 years, female (single) d/o Shri Prem Kumar, village Shivaji Nagar, House No. 810/11 Ludhiana was admitted on 22.05.1998 and discharged on 06.06.1998. She was suffereing from mental disorder at that time. She was diagnosed as Chronic Paramoid Schizophrenia for the last four years. She got admitted by her father Shri Prem Kumar, and the history of the patient was described to me. I have recorded the history as told by her father. He told that she was having mental symptoms for the last 4 to 5 years. The sleep was less. She was having acute psychotic symptoms at the time of admission. I have mentioned the history of the patient in the register which I have brought today, and the attested true copy of the same is Ex.PW3/As she was admitted in-door because she showed acute mental symptoms. She had paranoid symptoms. She was suicidal and also she could harm herself and others. The patient was restless and she could harm and attack others as well, and could cause injury. It has been recorded in the history of the patient that her Nana had been suffering from the mental disease. There was no test for diagnosing this disease from which the respondent was suffering. Only the history tells about the earlier condition of the patient. I cannot say if the disease for which the respondent was suffering is definitely curable or not. This disease is known 9

for relapses. There is no direct relationship in the stress or strain with the disease. This disease is not related to nose or throat. There can be no finding in MRI regarding this kind of disease. There may be suicidal tendency of such type of person suffering from this disease. The respondent was admitted in the hospital due to abnormal behaviour. I had observed that she passed stool in her cloth, she has visual hallucination. During her admission, she also stated that she wanted to marry her cousin and she was also laughing herself. She was admitted twice in my mental Hospital at Dharampur. I got signatures of father of the respondent in my register, whenever she got admitted by her father in my hospital and the register bears the signatures of her father. Second time, she was admitted by her father Prem Kumar on 28.09.1999 and was discharged on 05.10.1999. That time she was more excited and more elated and at that time the diagnosis was quarry mania. This time she did not have any paranoid symptoms. Her address was recorded this time 810/11 Shivaji Nagar, Ludhiana. Usually, if patient remains symptoms free for two years they can get married, but other partner should know the problem so that the treatment should be continued."

(Emphasis supplied)

In cross-examination, PW-3 stated that during the treatment in his hospital, the respondent-wife responded very well to the treatment. No suicidal action was taken by her during the treatment in his hospital for the second time. He also stated that if the patient remained symptoms free then she is manageable. According to him, as per the records, the respondent-wife was manageable.

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11) Dr. Gurpreet Inder Singh Miglani (PW-7), Associate Professor and Incharge, Department of Psychiatry, Guru Ram Dass Medical Hospital, Amritsar stated as under:- "I remained posted in Guru Teg Bahadur Sahib Charitable Hospital at Ludhiana from 1995 to 1998. I was working there as Consultant for Psychiatry. I have seen the original file produced in the Court today relating to Dimple d/o Prem Kumar r/o Shastri Nagar, H.No. 257-A Ludhiana. Dimple was got admitted in our Hospital on 15.06.1996 at 06:50 a.m. by her father Prem Kumar in the Emergency Ward. She was suffering from a very violent behaviour and she has to be given Electric Convulsive Therapy (ECT) on the same day in the operation theater. Subsequently also five ECTs were given as her violence was not being controlled along with other anti psychotic drugs. A diagnosis of F 2004 was made according to ICD 10 at the time of discharge on 15.07.1996. She was labeled as suffering from Paranoid Schizophrenia with incomplete remission and discharged on stable condition. Due consent for ECTs in operation theater under general anesthesia were taken from the father of the patient."

(Emphasis supplied)

In cross-examination, he has stated that he cannot say exactly about the disease of the respondent-wife whether it can be treatable or not at this stage. He further stated that the disease of the respondent can be cured or it can aggravate after a lapse of time.

12) It is relevant to point out that the documents produced from the side of the respondent-wife, particularly, medical 1

report issued by Dr. Harjeet Singh, Consultant Psychiatrist, RW-4 shows as:

"Impression: Bipolar Affective (Mood) Disorder, currently in remission."

"Advice: marital therapy for the couple. Follow up as and when required."

The said Report has been marked as Annexure R10. A fair typed copy of relevant extract of Ex. P3 shows that "Mood according to patient is euthenics." The Annexure along with the counter affidavit of the respondent-wife filed in this Court, particularly, Certificate issued by the Doctor refers "suicide threats made by her on some occasions".

13) The appellant-husband was examined as PW-4. According to him, the marriage with respondent-wife was solemnized on 02.10.2000 and it was an arranged marriage. After marriage, both of them went to Vaishno Devi, however, in the meanwhile he noticed some strange facial expressions and behaviour of his wife-Dimple. He subsequently came to know that she was suffering from some serious disease. She used to become annoyed and angry on petty issues, abuse and fight with him, flaunt her father's status and influence, comb her hair throughout the day, cry like children, apply brakes of a 1

moving vehicle, call strangers in the house and offer them tea. Even once she called a washerman in the house and gave him Rs. 200/- unnecessarily and when he said `thanks' she immediately snatched the money from his hands and slapped him for no reason and, thereafter, she abused him and pushed him out of the house. According to him, such things had become her everyday chores. She used to wake up very late in the morning. Whenever his mother and sister called her to join them, she started abusing and insulting them. She used to call his mother stupid and his sister as wretched. One day, when his friend Sumit came to their house, she insulted him when he was sitting in the drawing room on the ground floor and when the appellant-husband was coming down to join him, she pushed him from stairs and started laughing, as a result, he fell down and got fractured. She was in the habit of listening to phone calls of Madan Lal, the landlord (PW-5) and used to abuse his relatives over phone. One day, when the landlord (PW-5) told them that he is fed up with the appellant and his family and asked to leave the house immediately thereupon, the respondent-Dimple slapped him on his face for 1

which he had to apologise him for her acts. Even, one day, she threw the infant child towards him.

14) In order to show that his marriage was an arranged one he explained that he knows the father of the respondent-wife prior to the marriage as he was his Boss in Life Insurance Corporation office, Amritsar Division. He worked under him for a period of 6-8 months. He further explained that the behaviour of the respondent-wife came to his notice after 1= months' after their marriage and he immediately disclosed this fact to her father. The treatment was given to the respondent- wife for the first time on 06.09.2001 for her abnormal behaviour.

15) Another important witness examined on the side of the appellant-husband is Madan Lal (PW-5), the landlord, who rented his house to them. In his evidence, PW-5 deposed that he is resident of H.No. 62, Tilak Nagar, Amritsar and his wife is also residing with him. He rented out a portion of the building to the appellant-husband and respondent-wife which was on the first floor. He and his wife were residing on the ground floor. According to PW-5, the respondent-wife usually 1

remained sitting in the portion of his house during the day time where he is residing with his family unless and until the appellant-husband return home. She used to sit with his daughter and daughter-in-law and remained talking with them. She also quarrels with his wife and daughter due to the use of telephone. He explained that his daughter-in-law told him that the respondent-wife often threatens to commit suicide. The High Court, without looking into the evidence of Madan Lal (PW-5), erroneously concluded that his evidence was of no help. On the other hand, PW-5 has specifically narrated the behaviour of the respondent with his wife, daughter-in-law and the agony he himself had undergone and highlighted all those details in the Court.

16) Apart from the above oral evidence, the appellant- husband has also pressed into service a copy of an affidavit of the respondent-wife i.e. Annexure-R3. In the said affidavit, the respondent-wife has stated that she threatened to commit suicide so many times to her in-laws and she even tried to commit suicide by way of jumping from the roof of the house on the intervening night of 19-20.09.2001 but could not 1

succeed due to timely intervention of her husband. She also stated that she realized that her attempt to commit suicide was at the instance of her parents and now she is repentant for her actions for threatening to commit suicide and apologise for the same with the assurance not to repeat such type of actions in future.

17) Though the trial Court accepted the claim of cruelty, the High Court reversed the said conclusion and completely rejected the claim of divorce even under unsound mind. In the impugned judgment, though the High Court has adverted to the evidence of four doctors, without proper appreciation, arrived at an erroneous conclusion that mere evidence of mental illness is not sufficient to seek decree for divorce. In spite of abundant materials, unfortunately, the High Court has erroneously concluded that only wordings of Section 13(1)(iii) of the Act were merely reproduced without adverting to the facts of the case. According to the High Court, necessary materials were not pleaded. We are unable to accept the said conclusion. Without proper discussion and adequate reasons, the High Court rejected the evidence of the 1

appellant-husband as PW-4. A perusal of his evidence clearly show the agony and treatment meted out immediately after the marriage due to mental disorder/unsound mind of the respondent-wife.

18) From the materials placed on record, we are satisfied that the appellant-husband has brought cogent materials on record to show that the respondent-wife is suffering from mental disorder, i.e., Schizophrenia. From the side of the appellant- husband, various doctors and other witnesses were examined to prove that the respondent-wife was suffering from mental disorder. We have already extensively quoted the statements of Dr. Paramjit Singh (PW-1), Dr. Ravinder Mohan Sharma (PW-2), Dr. Virendra Mohan (PW-3) and Dr. Gurpreet Inder Singh Miglani (PW-7) - all the four doctors/Psychiatrists who treated the respondent-wife, prescribed medicines and also expressed the view that it is "incurable". Even the respondent- wife and her father themselves admitted in their cross- examination that the respondent had taken treatment from the said Doctors for mental illness. Thus, it is proved beyond doubt that the respondent-wife is suffering from mental 1

disorder/Schizophrenia and it is not reasonably expected to live with her and the appellant-husband has made out a case for a decree of divorce and the decree should have been granted in favour of the appellant-husband and against the respondent-wife.

19) The High Court, by impugned order, negatived the plea of the appellant-husband under Section 13(1)(iii) of the Act on the ground that the appellant-husband has merely reproduced the wordings of the Section without applying the same to the facts of the case and that it was not pleaded that it was a case of continuous or intermittent disorder. The aforesaid reasoning of the High Court is completely erroneous and contrary to the material on record which we have already demonstrated.

20) Coming to the pleadings before the High Court, the appellant-husband had specifically pleaded that the respondent-wife was suffering from Schizophrenia, which is a kind of mental disorder and he had pointed out specific incidents to show that the respondent-wife was not of sound 1

mind. The relevant portion of the petition for divorce filed by the appellant is reproduced hereunder:

"4. That the petitioner shortly after his marriage found the respondent to be acting in a very abnormal manner. She would abruptly get very aggressive, hostile and suspicious in nature, ought to hit any body available in her company and her suspicion would go to such an extent that she should not like to take food without some other member of the family consuming the same. The respondent would also in a fit of anger declare that she will bring an end to her life by committing suicide and would have the petitioner and all the family members involved in a false criminal case unless she was provided with separate place of residence.......Enquiries made in the meantime revealed that the respondent has been suffering from acute mental depression coupled with Schizophrenia, a mental disorder and illness at intervals with Psychopathic disorder since developed into mania, which prompted her to become more and more violent and aggressive and on one such occasion she repeated threat of suicide and attempted jumping from the house of her in-laws on 19/20.09.2001 but could not succeed in her attempt due to timely intervention of her husband, who is the petitioner... ......All the same hoping that treatment may cure the respondent she was got treated by the petitioner and her parents from various places in connection with her mental illness but such treatment provided to her including administering her electric shocks, did not improve the state of affairs. She was so treated as indoor and outdoor patient in Shri Guru Teg Bahadur Hospital, Amritsar in Psychiatric Department in Dr. Vidya Sagar Mental Health Institute and in Bhatti Neuro Psychiatric Hospital till the end of the year 2001 but all the intensive and costly treatment did not yield fruit and she could not be cured of her mental sickness. The respondent is, therefore, suffering from major mental disorder in which she has suicidal tendency and becomes aggressive and violent in her behaviour for which she was getting treatment, as referred above, before as well as after the marriage. She has been given anti-psychic treatment and even electric therapy at four occasions at least to the knowledge of the petitioner but the things did not improve therewith. The respondent has, therefore, been suffering incurably from unsoundness of mind and has been so suffering continuously or intermittently from mental disorder 1

of such a kind and such an extent that the petitioner cannot reasonably be expected to live with the respondent.

5. That on one such occasion under the fit of insanity the respondent pushed the petitioner from the staircase leading to their residential portion causing the petitioner fracture of right hand for which he got treatment from, Dr. Hardas Singh Sandhu in the last week of November, 2001. Such aggressiveness was not first of its kind and in the past also the respondent under the fit of insanity ventured to slap the petitioner in his face in the presence of his parents....." The above averments make it clear that the appellant- husband, after narrating specific incidents of abnormal behaviour of the respondent-wife had duly pleaded that she was suffering continuously/intermittently from `incurable' mental disorder of such a nature that he cannot be reasonably expected to live with her. It was also stated therein that due to her unsoundness, the respondent-wife was not able to lead a married life and thus the appellant-husband was entitled to a decree of divorce. Apart from this, the appellant-husband had brought cogent evidence on record to show that the respondent-wife was not in a fit state of mind whereas the respondent-wife could not lead any acceptable evidence to rebut the same. We have already pointed out that the respondent and her father admitted her mental illness and 2

periodic treatment from the doctors mentioned above. No doubt, it was pointed out that after the marriage, the couple was blessed with a female child and at present she is studying in a school and there is no dispute about the same. It is clear from the respondent's evidence that from the date of delivery of child, the child was periodically taken care of by her grand- parents. It is also relevant to note that whenever the child was with respondent-wife, she (the mother) was not taking appropriate care which is clear from the evidence of the appellant-husband (PW-4) and their landlord, Madan Lal (PW-5). One incident which was referred to was that many a times the respondent-wife casually threw the child facing opposite to her. Under these circumstances, the High Court ought to have accepted the case of the appellant-husband. 21) The High Court rejected the plea of the appellant- husband regarding cruelty on the ground that apart from his statement, there is no evidence to prove the same and Madan Lal (PW-5), being hearsay, his evidence was not reliable. As rightly pointed out by Mr. Nidhesh Gupta, learned senior counsel for the appellant-husband that as far as Madan Lal 2

(PW-5) is concerned, the High Court has only referred to his cross-examination without even adverting to the examination- in-chief wherein he had categorically stated about cruelty meted out by respondent-wife to the appellant-husband. The relevant portion of the evidence of PW-5 is as follows: "Thereafter Pankaj Mahajan, his wife Dimple alias Kajal and their infant child aged about 4-5 months started living on the upper portion of my house. They lived in my house on rent upto 30.11.2002. After some days of taking of the house on rent by them, I felt that the girl Dimple was not taking any interest in household affairs and she used to avoid doing household works...........

..........She used to sit idle after Pankaj's going to office and was not breast-feeding the child even after child's uncontrollable crying. Not only this, she used to come down and sit in our bedroom for long hours unnecessarily and talking rubbish and repeating on the same thing again and again. Many times when I asked Dimple why she behaves like this and whether she is alright or not, then she did not reply back and kept mum and whenever she answered to my queries, she used to say that I want to die and my heart says that I should commit suicide. When I heard this from the mouth of Dimple, I become doubly sure that she is mentally unsound and due to her unsound behaviour even my family too become disturbed and started living in constant fear because it appeared from her behaviour that she will do something extreme one day and if she does so, then apart from her in-laws, all of us too will be unnecessarily implicated in the criminal case. Dimple used to come to our house during lunch time and demand food for herself and used to sit in our house for long hours and whenever Pankaj used to come back from his office, she used to tell him that we will go to our portion after taking meals from us. She used to repeat one thing many times. One day, she even went to the extent of saying that you are cooking food every day-then why don't you keep us as your paying guest because I cannot prepare food myself and I also cannot look after my child. Mostly Dimple used to leave her child with 2

my daughter-in-law and request my daughter-in-law that she should change clothes, bath the child and give her canned milk. My daughter-in-law did all this for 5-6 times, but one day my daughter-in-law clearly told Dimple that this is your duty and she herself should look after the child. On hearing all this, Dimple immediately turned red in anger and slapped my daughter-in-law and called her idiot." It is clear from the above that the respondent-wife was not of sound mind and she did not look after the household work rather she used to give threats to commit suicide. She did not even make food for the appellant-husband and he had to arrange the same from outside. Apart from this, she used to embarrass the appellant-husband before his landlord's family and because of her weird behaviour and threats to commit suicide, the appellant-husband was forced to leave the rented accommodation. Madan Lal, the landlord, PW-5 has also highlighted several instances when the respondent-wife used to quarrel with her husband and he had to face humiliation in front of others because of her behaviour. Inasmuch as PW-5 was living in the same house on the ground floor and the appellant-husband and the respondent-wife were living on the first floor, the said witness being the eye-witness to the cruelty meted out by the respondent-wife to the appellant-husband, 2

as he had himself seen the behaviour and the activities of the respondent-wife including humiliation and threats of committing suicide, cannot be thrown out. Under those circumstances, the observation of the High Court that the statement of PW-5 is only hearsay is liable to be rejected. 22) In addition to the evidence, the appellant-husband had categorically pleaded in his petition for divorce about the cruelty meted out to him. He narrated the incidents when she used to give threats to commit suicide and had even tried to commit suicide by jumping from the terrace and also pushed him from the staircase resulting in fracture in his right forearm. Due to her mental disorder, on various occasions, she even slapped him. She was also most disrespectful to his parents and she even forced him to live separately from them. His evidence in the form of an affidavit filed before the trial Court is available in the paper book wherein he narrated all the sufferings meted out by her. It is useful to refer the relevant portion from the same:

"My wife Dimple used to become annoyed and angry on petty issues. She used to abuse and fight with me. She used to flaunt her father's status and influence. She used to comb her hair throughout the day. She used to cry like children. 2

She used to apply brakes of a moving vehicle. She used to call strangers in the house and offer them tea. Once she even called a washerman in the house and gave him Rs. 200/- unnecessarily and when he said thanks she immediately snatched Rs. 200/- from his hands and slapped him for no rhyme or reason and thereafter she abused him and pushed him out of the house. In fact, such things had become her everyday chores. She used to tell me everything about sex lives and relationship of her maternal uncle and aunt. She was in the habit of not sleeping throughout night and also used to keep me awake throughout night and whenever I tried to sleep, she used to insist me to talk to her and whenever I told her to allow me to sleep, she used to press my neck. She used to wakeup the child from deep slumber and start slapping her for no reason. She was in the habit of wrapping the child in wrapper throughout continuously and due to which child used to weep continuously. She used to say that she is obsessed and hears outer world's voices and barking of dogs. She used to tell me that she is regularly seeing evil spirits. She used to go out for roaming at 2-3 a.m. in the night. Whenever I refused to listen or agree to her demands, she used to throw dirty clothes upon me. She was in the bad habit or keeping the door of toilet opened throughout the day even while she was bathing or refreshing herself. She used to doubt everything whenever she started eating her food. She also used to doubt her mother and sister and used to say that both of them have immoral character. She was in the habit of opening and closing the central locking system of the car. She was in the habit of increasing the volume of TV to the maximum unnecessarily. Whenever I used to go to office, she used to stop me from going and when I told her that I have to go to office, she used to say that she will commit suicide. In fact she was in the habit of pressing and coaxing me for all her needs and desires. She used to say that I want to live with Happy and also used to say that she has no interest in living with me. She stressed that she will leave me and starts living with Happy. (Happy is the son of my wife's elder paternal uncle.)

She was in the habit of unnecessarily arguing with my parents and used to abuse them and whenever I stopped her from doing so, she used to threaten me that she will commit suicide. However, I used to request my parents to look after her in my absence. But she used to misbehave and insult them. She used to say that she will buy her own house and 2

will start living in that house because this house is very small for her needs and she feels suffocated in this house. Although my house is in a very posh colony and it is a very spacious, airy, open and large house. I noticed that condition of Dimple is becoming worse every day. I became sure that she is actually mad and she is concealing her madness from me. I noticed that she used to keep some medicine in her purse and used to take that medicine often. She was actually sex-hungry and was not interested in doing any household works. She never showed any interest in keeping her bedroom and drawing clean and tidy. She was in the habit of wearing the clothes of 3-4 days regularly. She used to wake up very late in the morning. Whenever my mother and sister called her to join them, she was abusing and insulting them. She used to call my mother stupid and my sister as wretched. However, I controlled myself and kept on tolerating her conduct, because all of us were in the fervent hope that one day God will cure her....

.....One day, my friend Sumit came to my house. Earlier also he used to come to my house as he is also working with me in the LIC. He wished Dimple and enquired about her and instead of welcoming him, Dimple insulted him by saying why are you coming to our house uncalled every day. He felt very insulted and sat in the drawing room on the ground floor and when I was also coming down to join him, Dimple pushed me from stairs and started laughing unnecessarily. As a result of aforesaid pushing, I fell down and bones of my right arm and wrist got fractured. Perchance, Ashok Kumar too had come to my house on that day and he was repeatedly asking for meals. But when he saw my condition, he immediately took me to the Hospital of Dr. Hardas where plaster was applied on my arm and wrist. When we came back, to my utter shock and surprise, Dimple did not even notice any change in me and did not remotely felt that I have received fractures in my arm and wrist and plaster has been applied on my arm. One day when we were sitting in the drawing room, I called Dimple and asked her to bring tea for me. At that time she was wearing very dirty clothes. So, I asked her to immediately go and change her dirty clothes and wear some good clothes. But instead of changing her clothes, she started abusing me and even slapped me on my face. Thereupon my mother asked her why she is behaving like this, upon which she rose her hands to slap my mother too, but my sister stopped her from doing so. We narrated all the above incidents of Dimple to 2

her father. He expressed his shock and apologized on her behalf and advised us to start living separately and said that she will start behaving properly and nicely." All the above details in the form of assertion in the affidavit clearly show that the appellant-husband faced cruelty at the hands of the respondent on several occasions.

23) It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the appellant-husband has placed adequate materials to show that the respondent-wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The acts of the respondent-wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the appellant-husband which amounted to cruelty in matrimonial 2

law. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated. They are: i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion

by jumping from the terrace.

ii. Pushing the appellant from the staircase resulting into fracture of his right forearm.

iii. Slapping the appellant and assaulting him. iv. Misbehaving with the colleagues and relatives of the appellant causing humiliation and embarrassment to him.

v. Not attending to household chores and not even making food for the appellant, leaving him to fend for himself.

vi. Not taking care of the baby.

vii. Insulting the parents of the appellant and misbehaving with them.

viii. Forcing the appellant to live separately from his parents.

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ix. Causing nuisance to the landlord's family of the appellant, causing the said landlord to force the appellant to vacate the premises.

x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant.

xi. Always quarreling with the appellant and abusing him.

xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant.

24) All these factual details culled out from the pleadings and evidence of both the parties clearly show the conduct of the respondent-wife towards the appellant-husband. With these acceptable facts and details, it cannot be concluded that the appellant-husband has not made out a case of cruelty at the hands of the respondent-wife. We are satisfied that the appellant-husband had placed ample evidence on record that the respondent-wife is suffering from "mental disorder" and due to her acts and conduct, she caused grave mental cruelty 2

to him and it is not possible for the parties to live with each other, therefore, a decree of divorce deserves to be granted in favour of the appellant-husband. In addition to the same, it was also brought to our notice that because of the abovementioned reasons, both appellant-husband and the respondent-wife are living separately for the last more than nine years. There is no possibility to unite the chain of marital life between the appellant-husband and the respondent-wife. 25) In the light of the facts and circumstances as discussed above, in our view, the impugned order of the High Court resulted in grave miscarriage of justice to the appellant- husband, more particularly, the High Court failed to consider the relevant material aspects from the pleadings and the evidence, the ultimate conclusion cannot be sustained. The appellant-husband established and proved both grounds in terms of Section 13 of the Act. In the result, the appeal stands allowed. The divorce petition filed by the appellant-husband stands accepted and a decree of divorce is hereby passed dissolving the marriage of the appellant with the respondent from today, i.e. 30.09.2011. The impugned order of the High 3

Court dated 06.08.2009 in FAO No. M-123 of 2006 is set aside. The appellant-husband is directed to pay an amount of Rs. 2 (Two) lakhs as alimony to the respondent-wife in two equal instalments within a period of three months from today and to deposit Rs. 3 (Three) lakhs in the name of his daughter in the shape of three FDRs in a nearest nationalised bank in three equal instalments commencing from January, 2012 ending with June, 2012. On attaining majority, the daughter is permitted to withdraw the amount. Till such period, the respondent-wife is permitted to withdraw accrued interest once in three months directly from the bank from the said deposit for the benefit and welfare of their daughter. ................................................J. (P. SATHASIVAM)

...............................................J. (DR. B.S. CHAUHAN)

NEW DELHI;

SEPTEMBER 30, 2011.

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