Poonam Vs Nitant Kashyap

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA F.A.O. (FC) No. 06 of 2024

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Reserved on : 18.03.2024

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Date of decision : 02.04.2024

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-------------------------------------------------------------------------------------- Poonam ..Appellant Versus Nitant Kashyap ..Respondent

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-------------------------------------------------------------------------------------Coram :- The Hon’ble Mr. Justice M. S. Ramachandra Rao, Chief Justice

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The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

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Whether approved for reporting ?¹ {{_______________________________________________________ For the Appellant : Mr. Ashok Kumar Tyagi. For the Respondent : None

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--------------------------------------------------------------------------------------

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Jyotsna Rewal Dua, Judge

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Learned Principal Judge, Family Court, Sirmour granted decree of divorce prayed by the respondent-husband and dissolved marriage between him and the appellant-wife. The decree for dissolution of marriage dated 30.12.2023 has been assailed by the wife in the instant appeal.

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2. Facts

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2(i) Respondent filed a petition for dissolution of his marriage

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with the appellant on the grounds of cruelty and desertion. His case was that :-

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2(i)(a) Marriage between the couple was solemnized on 05.02.2013. Respondent’s mother was a cancer patient at that time. Respondent and his sister both were working, therefore, his mother was being looked after by the appellant. The appellant did not properly look after respondent’s mother. She died on 27.04.2013.

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The appellant conceived in the meanwhile. Gradually, her behavior towards the family became more and more aggressive. She openly proclaimed herself to be the head of the family and wanted every one to tow her dictates. The counselling given to her did not benefit.

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Appellant’s mother had strongly expressed her desire that the birth of child should take place in her village. The respondent, apprehensive of medical facilities available at Nahan and the village, did not want any risk to the mother and the child. He, therefore, opted for the delivery at Ludhiana. A girl child was born to the couple in April 2014. The couple alongwith their daughter returned to their matrimonial home at Nahan and lived there.

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2(i)(b) Appellant’s mother started interfering with the couple’s married life on day-to-day basis. At her insistence, the respondent alongwith his wife went to his mother-in-law’s house on 15.06.2014. The baby girl, being sick at that time, was left in the care of respondent’s sister. Respondent’s mother-in-law took strong

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objection to the baby having not been brought to her place. She started quarrelling with the respondent for not bringing the baby. Effort to calm her down failed. Respondent’s wife also joined hands with her mother and started abusing & fighting with the respondent. She refused to return to the matrimonial home with the respondent. The respondent had to return home alone. The appellant never joined respondent’s company thereafter.

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2(i)(c) The next day, to the utter shock of the respondent, police came to his house at Nahan. He was told that his wife had moved a petition under Section 97 of the Code of Criminal Procedure (Cr.P.C.) before the Sub Divisional Magistrate Paonta Sahib, wherein warrants had been issued against him. In this manner, the baby girl was handed over to the appellant. Despite repeated requests

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of the respondent, his wife did not return to her matrimonial home thereafter. In July, 2018, the appellant-wife filed a petition under Section 125 Cr.P.C. for grant of maintenance levelling false allegations.

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2(i)(d) The respondent also pleaded that his sister died in July, 2016. Despite being aware of this fact, his wife did not come forward to offer condolences.

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On the above grounds, divorce was prayed for.

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2((ii) The appellant contested the divorce petition. She pleaded herself having been subjected to cruelty by the respondent. That she was thrown out by the respondent from the hospital in April, 2014 after the birth of baby girl ; She had no option but to move an application under Section 97 Cr.P.C. before the SDM, Paonta Sahib on 18-06-2014 for getting the custody of the child. She further pleaded that the respondent alongwith his sister came to her parental home in October, 2015 and apologized for his misconduct. She then went back to her matrimonial home, where she came to know about respondent’s illicit relations with a lady by the name of Shyama. Appellant alleged that the respondent had solemnized temple marriage with this lady and had a son from her. The appellant also averred that her mother alongwith one Vinod Chaudhary went to Nahan and met the respondent pleading him to leave the company of other lady Shyama. The respondent did not relent, hence in June, 2016, the appellant left the company of her husband in compelling circumstances.

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2(iii) Learned Family Court on consideration of the pleadings, evidence and the submissions of the parties held that cruelty upon the husband by the wife was writ large. The evidence on record established that the stand and deposition of the wife was nothing, but a pack of lies. Inter-alia, it was also held that appellant was herself

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committing cruelty upon her husband by levelling baseless and scandalous allegations against him which she could not prove. Decree of divorce was passed on ground of cruelty.

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2(iv) In the afore background, wife has assailed the decree of divorce.

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3. Learned counsel for the appellant did not dispute the facts, pleadings & evidence, as noticed in the impugned judgment & decree, but submitted that learned Family Court erred in law in holding the appellant to be guilty of committing cruelty upon her husband. That allegations of infidelity levelled by the appellant against her husband in her pleadings in the divorce proceedings cannot be stretched to construe her having committed cruelty upon the respondent. Reliance was placed upon a Delhi High Court judgment dated 08.08.2023 in F.C. 38/2023 (Kamlesh Sharma Vs.

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Yogender Kumar Sharma) .

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4. We have heard learned counsel for the appellant and considered the case file. Our observations are as under :-

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4(i) The appellant had not merely alleged infidelity against her husband, but stated that he had solemnized marriage with another lady by the name of Shyama and also had a son from her. This ground was put forth as a reason for her to leave the matrimonial home in the year 2016. She also deposed that her mother and a

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person by the name of Vinod Chaudhary had gone to Nahan to dissuade her husband from continuing relations with this lady, but the respondent did not mend his ways. The allegations levelled by her were very serious. Appellant even cross examined her husband’s witnesses on these aspects, but could not establish the allegations. She produced Vinod Chaudhary as RW-2 who stated that he alongwith appellant’s mother had gone to visit respondent to ask him to end his relations with the other lady. The cross examination of this witness proved that his entire deposition was false and that he had never visited the respondent. His statement was at variance to his own testimony in his affidavit. He even failed to give address of the locality of respondent’s home. In 2016 (9) SCC 455 (Narendra Vs. K. Meena) , Apex Court held that it was though tough to establish the allegations of extra marital affairs, but it was equally true that to suffer an allegation pertaining to one’s character of having an extra marital affairs is torturous for any person, being a husband or wife. It was further held that levelling of absolutely false allegations and that too with regard to extra marital affairs to be quite serious and can surely be a cause for mental cruelty. In (2003) 6 SCC 334 (Vijaykumar Ramachandra Bhate Vs. Neela Vijaykumar Bhate) delivering into the question whether character assassination in or during divorce proceedings amounting to cruelty, which

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substantiated petition for divorce on ground of cruelty, it was held as

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under :-

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“6. In V. Bhagat v. D. Bhagat (Mrs.), [1994] 1 SCC 337, it was observed that mental cruelty in Section 13(1) (i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other and the parties cannot reasonably also be expected to live together or that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was also considered to be not necessary to prove that the mental cruelty is such as to cause injury to the health of the wronged party. That was a case wherein the husband filed a petition against the wife for divorce on the ground of adultery. In the written statement filed by the wife in the said proceedings, she alleged that the husband was "suffering from mental hallucination', that his was a "morbid mind .... for which he needs expert psychiatric treatment", and that he was "suffering from paranoid disorder" etc., and that during cross- examination several questions were put to him that the petitioner and several members of his family including his grandfather were lunatics and that the streak of insanity was running in the entire family. It is in the said context this Court though held the allegations leveled against the wife were not proved the counter allegations made by the wife against the husband certainly constituted mental cruelty of such a nature that the husband cannot reasonably be asked to live with the wife thereafter. The husband, it was also held, would be justified to say that it is not possible for him to live with the wife. In rejecting the stand of the wife that she wants to live with her husband, this Court observed that she was deliberately feigning a posture, wholly unnatural and beyond comprehension of a reasonable person and held that in such circumstances the obvious conclusion has to be that she has resolved to live in agony only to make life a miserable hell for the husband, as well.

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7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character,

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honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”

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Learned Family Court, in the given facts, justly observed that the appellant was not even able to disclose as to who was the other lady named by her, where she lived, when was the son born, where was the son etc. She not only levelled reckless and serious allegations against her husband, but also questioned the respondent & his witnesses about the same. Appellant could not prove allegations of respondent having extra marital affair, later solemnizing marriage with one Shyama and fathering her son. She could not establish herself being a victim of cruelty in the hands of her husband.

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4(ii) In view of evidence on record, learned Family Court rightly held that the respondent was able to demonstrate appellant’s not joining his company without any cogent reason. He established that he had brought his wife home with their new born child in April,

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Appellant’s counter allegations of she having been thrown from her matrimonial home immediately after the child birth had been proved to be false. She admitted in cross-examination having visited her mother’s home in June 2014 alongwith her husband and voluntarily choosing to stay back in her parental home. Respondent had to return alone to the matrimonial home. Under a process initiated by the appellant in June, 2014, the husband/respondent had to hand-over custody of their new born child to her. Appellant’s case of having joined the company of her husband in the year 2016 on his apologizing for his conduct, has not been established. The evidence discussed by the learned Family Court proves the appellant’s voluntarily opting to remain at her parental home ever since June 2014 for no particular reason. She admitted the efforts made by the respondent & his family members requesting her to join her husband’s company, but strongly put forth the reason of his extra marital affair for not obliging. Appellant utterly failed to substantiate & justify the excuse offered by her for not returning to her matrimonial home. Actions of appellant, her unsubstantiated reckless accusations, character assassination of her husband amounts to inflicting mental cruelty upon her husband/respondent.

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5. Learned Family Court properly appreciated the pleadings,

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evidence & the submissions of the parties in coming to the

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conclusion that the respondent was entitled to decree of divorce on ground of cruelty inflicted upon him by the appellant. There is no good ground to take a view different from the one taken by the learned Family Court. Hence, this appeal lacking in merit, is dismissed alongwith pending applications, if any.

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M. S. Ramachandra Rao, Chief Justice

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2^nd April, 2024 (K) Jyotsna Rewal Dua Judge

Poonam v. Nitant Kashyap

Case brief

What is this about?

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Poonam v. Nitant Kashyap

Case brief

What is this about?

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