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NV Vs. AV - (High Court of Delhi) (03 May 2019)

Petition should not have 'vague' and 'too general' allegations, but law does not require that every incident should be narrated with the minutest detail possible

MANU/DE/1546/2019

Family

The present appeal has been filed challenging the judgment passed by the Family Court whereby the petition under Section 13(1)(ia), (ib) of the Hindu Marriage Act, 1955 (HMA) filed by the Appellant/wife for dissolution of marriage has been dismissed. Disputes and differences having arisen between the parties, the Appellant/wife filed a petition under Section 13(1)(ia), (ib) of the HMA seeking dissolution of the marriage by passing a decree of divorce on the grounds of 'cruelty' and 'desertion'.

Learned counsel for the Appellant contends that, the Family Court failed to appreciate that the action of the respondent as pleaded in the divorce petition and testified in the affidavit, amounted to physical and mental cruelty towards the wife. Demand and receipt of dowry, constant beatings, threats to kill and repeated taunting qua the physical appearance of the wife, did cause a lot of mental and physical harassment to the Appellant. Despite a small child, the Respondent refused to lend any financial support to her and the child.

There are repeated assertions by the appellant that dowry was taken at the time of marriage and post marriage, there were further demands. Details of articles given and those further demanded were spelt out. The pleadings of the Divorce Petition filed by the Appellant indicate that she had averred that at the time of solemnization of marriage, her parents had given dowry far in excess of their financial capacity. Despite this, there were repeated demands of various articles. This testimony of the Appellant is un-impeached as the Respondent had chosen not to cross-examine her on this aspect. This by itself is a ground to dissolve the marriage on the ground of cruelty.

In the case of Shobha Rani vs. Madhukar Reddy, the Hon'ble Apex Court has while dealing with a petition under Section 13(1)(i-a) of the HMA on grounds of cruelty, has held that repeated and continuous demands of dowry made from the wife in the matrimonial home, with the connivance of the husband constitutes cruelty. Demand of dowry is prohibited under law and its mere asking is bad enough, entitling the wife to a decree of divorce. The Apex Court further held that it was not proper to discredit the wife only because there could be some exaggeration on the quantum of the demand. The proof required under the matrimonial law is on the threshold of preponderance of probability and not beyond reasonable doubt as in the criminal case.

In the case of Gannon Dunkerlay & Co. Ltd. vs. Their Workmen, the Hon'ble Apex Court has held that, the credibility and authenticity of the evidence produced by one party can be challenged by the other party by cross-examining the party. However, if a witness deposes a particular fact and no suggestion is given to the contrary during the cross-examination, the party against whom the deposition is made is deemed to have admitted that part of the deposition, which thereby remains unimpeached.

The entire testimony of the Appellant remained unimpeached and hence all the allegations would be deemed to be admitted by the Respondent. Therefore, the Family Court has erred in coming to a conclusion that, the testimony was unreliable or that the appellant had not proved cruelty. There is no doubt that beating, threatening, attempt to kill which remains unrebutted, would be a conduct that would amount to both mental and physical cruelty and even on this score, the Appellant is entitled to a decree of divorce.

The law requires that the petition should not have 'vague' and 'too general' allegations, but it does not require that every incident should be narrated with the minutest detail possible. The Appellant had given sufficient details of the incidents alleged.

The marriage between the parties was solemnized in the year 2003 and the parties have been living separately since 2012. As per the unrebutted assertion of the Appellant, there were marital discords between the parties right from the day of the marriage. It seems that the parties never enjoyed the bliss of a marital life. The foundation of a sound marriage is love and affection, tolerance, adjustments and respect for each other. While petty quibbles and disagreements on small issues are a normal wear and tear of every marriage, but if there is continuous ill-treatment of one spouse by the other and it is a dead marriage, the victimized party can be well justified in seeking dissolution of such a marriage.

The marriage has broken down irretrievably. The parties have been living apart since 2012. There does not seem to be any possibility of the parties resolving their differences. Thus, blending the fact of the marriage having broken down irretrievably with the ground of cruelty, present is a fit case where the marriage between the parties deserves to be dissolved. The appeal is accordingly allowed and the judgment of the Family Court is set aside. The marriage between the parties is hereby dissolved.

Relevant : Shobha Rani vs. Madhukar Reddi MANU/SC/0419/1987, Gannon Dunkerlay & Co. Ltd. vs. Their Workmen MANU/SC/0500/1971

Tags : CRUELTY   DIVORCE   GRANT  

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