* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 8th August, 2023

% Pronounced on: 13th September, 2023

+ MAT.APP.(F.C.) 236/2018 & CM APPL. 38556/2018

.... Appellant
Through: Mr.R.K.Bali, Advocate with
Ms.Pragya Verma and Ms.Meghna
Bali, Advocates with appellant in
person.

Versus

.... Respondent
Through: Mr.Sahil Malik, Advocate with
Mr.Abhishek Kumar, Mr.Jitender,
Advocates with respondent in
person.

CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J
1. The present Appeal under Section 19 of the Family Court Act,
1984 read with Section 96 of Code of Civil Procedure, 1908 has been
filed by the appellant-wife (respondent in the divorce petition hereinafter
referred to as „appellant-wife‟) challenging the Judgment dated
30.07.2018 granting divorce on the ground of ‘Cruelty’ under Section
13(1)(ia) the Hindu Marriage Act, 1955 (hereinafter referred to as “the
Act, 1955”) to the petitioner (hereinafter referred to as „respondent-

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 husband‟).
2. The facts in brief are that the parties got married on 03.12.2003
according to Hindu customs and rites and no child was born from the said
wedlock. The respondent-husband asserted that their marriage was simple
and dowryless. The appellant-wife came to reside in the matrimonial
home on 04.12.2003 but merely two days after the marriage, she started
complaining that she felt suffocated in the joint family which comprised
of respondent-husband, his parents and brother. She insisted that separate
residence from the family members be set up. She also insisted to take
premises at Mia Wali Peera Garhi, New Delhi where her brother-in-law
Mr.Devender was residing. The efforts of the respondent-husband to
dissuade the appellant-wife from setting up a separate residence did not
meet any success.
3. The respondent-husband further claimed that the appellant-wife was
a lady of arrogant nature and haughty temperament who used to pick
quarrels without any justifiable cause or reason. She would frequently go
to her parental home as well as to the house of her sister Laxmi, wife of
Devender who was residing in Peera Garhi, New Delhi without informing
or seeking permission from the family of the respondent-husband. On
questioning, she retorted and told the respondent-husband not to interfere
in her personal affairs.
4. The respondent-husband has further asserted that the appellant-wife
neglected the household works and even refused to prepare the food for
the respondent-husband. She had a non-cooperative attitude and has been
most of times being lying on the bed thereby causing humiliation and
mental torture to the respondent-husband impacting his health. She even

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 refused to show respect to the relatives of the respondent-husband visiting
the matrimonial home and one such incident happened on 15.05.2004
when she retorted that she was not a servant of the relatives of the
respondent-husband and thereby insulted the relatives who had visited
their home.
5. The respondent-husband has further asserted that the appellant-wife
refused to have physical relationship and has always refused to his
advances by calling him impotent. In February 2004, she became
pregnant and was being taken care of by the respondent-husband and all
medical check ups were being done by qualified Doctor at Sanchet
Hospital, Paschim Vihar, Delhi. She however, insisted that she had no
desire to have the child and went back to her parental home along with her
brother Chander Prakash, on 10.07.2004 and took away all her jewellery
and clothes. There she took some herbs and suffered abortion on
28.08.2004. She was eventually brought back to the matrimonial home on
29.08.2004. She however, again went to her parental home on 05.09.2004
where she stayed till 23.06.2005 i.e. for about 9 months. It was with the
intervention of the relatives and the respectable family members that she
rejoined the matrimonial home on 23.06.2005. However, she occupied a
separate room in the same premises and did not permit the respondent-
husband to have conjugal relationship. She also extended threat that in
case the respondent-husband touched her, she would commit suicide.
6. On 09.10.2005, her brothers Mr.Krishan and Mr.Karamvir came to
the matrimonial home at about 1 p.m. with Hockey etc. and assaulted the
respondent-husband physically due to which, he suffered injuries and was
given treatment vide MLC No. 3504 dated 09.10.2005 at Sanjay Gandhi

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 Hospital, Delhi. However, the police did not register any case against the
appellant-wife and her brothers. The respondent-husband thus, claimed
that he had been subjected to immense physical and mental cruelty and
sought divorce.
7. The appellant-wife on the other hand, denied all the allegations
of cruelty made against her. She asserted that they had a lavish wedding
and aside from valuable jewellery, household articles, a Santro Car was
also given. Despite this, she was not treated properly. Her sister-in-law
(Nanad) Rekha was not satisfied with the clothes given to her for which
she was given Rs.5000/-. Also, a gold ring was given to the elder brother
of the respondent-husband on their demand. The respondent-husband and
his family members were also unhappy with the Santro car as it did not
match their status.
8. The appellant-wife has further asserted that respondent-husband
wanted to set up a factory for which he demanded Rs.30 lakhs which he
intended to construct on the plot of land owned by her parents and he
demanded a part of land from the parents of the appellant-wife.
Unfortunately, the Santro car got stolen and thereafter, a demand was
made for purchase of a bigger car. The appellant-wife and her family
members in the hope that better sense would prevail over the respondent-
husband, contributed Rs.7 lakhs as was demanded but the atrocities on the
appellant-wife did not stop.
9. The appellant-wife also asserted that her mother-in-law gave her
some desi medicine with an assurance that a son would be born, but, in
fact, it was intended to abort her pregnancy and immediately thereafter,
she fell ill and was taken to the hospital where she suffered an abortion.

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 The Doctor advised her complete bed rest to recover fully but she was
made to do all the domestic chores because of which she developed other
problems. On her becoming ill, the respondent-husband and their family
members sent her with her brothers to her parental home with assurance
that they would bring her back but failed to do so. It was evident that
there was no intention to take her back to the matrimonial home. She
ultimately went back to her matrimonial home on 23.06.2005 at about 4
p.m. but was not allowed inside the house and a quarrel followed. The
police had to be called and an undertaking was given by the respondent-
husband to the SHO, Police Station Nangloi that he would not commit any
cruelty. Since then, the appellant-wife started residing in her matrimonial
home despite all odds. It was asserted that she on many occasions was
subjected to merciless beatings and abuses.
10. The appellant-wife further admitted that a MLC was prepared on
09.10.2005 but it is asserted that the same was prepared falsely. The
appellant-wife thus denied all the allegations of cruelty as were made by
the respondent-husband. On the contrary, it was asserted that it is she
who was subjected to cruelty.
11. The Divorce Petition was filed in the year 2007. After the Divorce
Petition was filed, the appellant-wife got registered an FIR bearing No.
106/2008 under Sections 498A/406/34 I.P.C. at P.S.Nangloi against the
respondent-husband and his family members though they have been
acquitted vide the judgment dated 16.03.2023. The appellant-wife had
also filed a complaint under Section 12 of the Protection of Women from
Domestic Violence Act, 2005 (hereinafter referred to as ‘D.V. Act’)
against the respondent-husband but the same was also disposed of on

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 30.09.2022. A complaint case under Section 156(3) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’) titled
Sushila Vs. Joginder was filed which is pending adjudication before the
Malhila Court, Rohini. Further, a complaint case titled Sushila Devi Vs.
Sehnoor Khan & Ors. was also filed which is pending trial before the
learned M.M., Tis Hazari Courts.
12. Also, father of the respondent-husband had filed a complaint case
being C.C.No.513526/2016 titled Satyapal Vs. Sushila for having
threatened him in which the appellant-wife has been convicted under
Section 506(II) I.P.C. vide judgment dated 14.12.2018.
13. The issues in the pleadings were framed on 12.05.2009 as under:-
“(i) Whether the respondent has treated the petitioner
with cruelty, after solemnization of the marriage? OPP.
(ii) Whether the petitioner is entitled to a decree of
divorce on the ground as prayed for? OPP.
(iii) Relief.”
14. The respondent-husband appeared as PW-1 in support of his
assertions and also examined two other witnesses i.e. PW-2 Dr. Suneeta
Agarwal and PW-3 Rakesh Kumar, UDC, SGM Hospital, Mangolpuri to
prove the medical records.
15. The appellant-wife had appeared as RW-1 and tendered her
evidence by way of affidavit Ex. RW1/1 in support of her case.
16. The learned Judge, Family Courts considered various acts of
cruelty, physical abuse and mental torture along with the threats and the
criminal cases filed by the appellant-wife against the respondent-husband
and also the long period of separation. It was also observed that there was

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 no co-habitation between the parties and thus concluded that the
respondent-husband has successfully proved that he had been subjected to
cruelty and thereby granted divorce on the ground of cruelty under
Section 13(1)(ia) the Act, 1955.
17. Aggrieved by the Decree of Divorce, the appellant-wife has
preferred the present appeal.
18. Submissions heard.
19. The parties got married on 03.12.2003 but, instead of happiness,
their marriage became a bed of rocks from the first day. According to the
respondent-husband, the appellant-wife was a quarrelsome lady who did
not show any respect to his visiting relatives and also shied from doing the
household works. She also picked up quarrels on various occasions.
Indisputably, on 23.06.2005, a fight ensued and the police was called.
The matter was got resolved with the intervention of the police with the
undertaking being given by the respondent-husband that some altercation
had taken between them on some domestic matters and that the said
mistakes would not be repeated in future. Both the parties amicably
resolved their differences and that they did not want any police action and
the matter was resolved. Another such incident being of 09.10.2005 when
the brothers of the appellant-wife had assaulted the respondent-husband
for which he had taken treatment at Sanjay Gandhi Hospital vide MLC
No. 3504 dated 9.10.2005. This MLC Ex.PW-3/1 has also been proved
by PW-2 and the testimony has remained unrebutted. In the MLC, the
history of injury has been given as ‘physical assault’ and the respondent-
husband had suffered CLW on his right eyebrow. No cogent explanation
or rebuttal of this incident has been given by the appellant-wife.

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 20. The quarrelsome nature also got manifested during the Court
proceedings on 19.12.2011 in FIR No. 106/2008 under Section 498-A IPC
when the appellant-wife had threatened the respondent-husband and his
family members that she would send him to jail and kill him. This
incident has been admitted by the appellant-wife in her cross-examination
recorded on 20.11.2012 in the said FIR/case.
21. Furthermore, a criminal case under Section 506(II) I.P.C. was
registered against the appellant-wife and her family members in which
they have been convicted vide Judgment dated 14.12.2018. It has been
rightly argued that a person who does not shy in threatening and
quarrelling with the respondent-husband and his family members in the
open Court, her conduct as deposed by the appellant-wife at the
matrimonial home can very well be accepted. These incidents clearly
prove that the appellant-wife and her family members were quarrelsome
and the appellant-wife had inflicted physical cruelty upon the respondent-
husband.
22. The respondent-husband had also deposed that the appellant-wife
would frequently go to her parental home. There is no denial that she
went to her parental home on 05.09.2004 and returned only on
23.06.2005. While the respondent-husband had claimed that he had made
sincere efforts to bring her back but the appellant-wife claimed that she
had been deserted by the respondent-husband and she on her own had
returned to the matrimonial home.
23. Significantly, according to the respondent-husband, though the
parties started residing in the same house but they were living as
strangers. The appellant-wife denied him conjugal relationship and

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 whenever he approached her, she threatened him to commit suicide.
Again, there is no serious rebuttal of this testimony of the respondent-
husband which again reflects that there was breakdown of conjugal
relationship which is the bedrock of any matrimonial relationship.
24. It is further not in dispute that after the incident of fight between the
respondent-husband and the brothers of the appellant on 09.10.2005 the
appellant-wife had been residing in her matrimonial home. It is
significant to note that the appellant-wife had made various allegations of
dowry demand and has even claimed that a sum of Rs.7 lakhs has been
paid to the respondent-husband and his family members for purchasing a
bigger car. Pertinently, no complaint was made by the appellant-wife at
that time but it was made subsequently after the Divorce Petition was filed
in the year 2007 and the FIR under Section 498-A IPC was registered
being FIR No. 106/2008 which is much after the parties separated in
October, 2005. It is no doubt true that every person has a right to seek
remedy by resorting to the State machinery and simpliciter filing a
complaint under Section 498-A IPC would not amount to cruelty, but it
cannot be overlooked that various allegations of cruelty had been made by
the appellant-wife against the respondent-husband which have not been
proved by her in the present proceedings. Even in the criminal trial, the
respondent-husband and his family members have been acquitted. The
appellant-wife though had claimed that she was subjected to harassment
for dowry and to cruelty, but she has not been able to substantiate her
assertions. Making such false allegations which she is not able to sustain
or prove is clearly an act of cruelty. Though filing of a criminal complaint
per-se cannot be termed as an act of cruelty yet, at the same time, the

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 allegations of cruelty as made in the criminal case(s), should have been
substantiated in the divorce proceedings.
25. In the case of K.Srinivas vs.K.Sunita X (2014) SLT 126, the
Supreme Court held that filing of the false complaint against the husband
and his family members constitutes mental cruelty for the purpose of
Section 13(1)(ia) of the Act, 1955.
26. Similarly, it has been held by the Supreme Court in Mangayakarasi
vs. M.Yuvaraj (2020) 3 SCC 786 that it cannot be doubted that in an
appropriate case, the unsubstantiated allegation of dowry demands or such
other allegations, made the husband and his family members exposed to
criminal litigation. Ultimately, if it is found that such allegations were
unwarranted and without basis and if that act of the wife itself forms the
basis for the husband to allege the mental cruelty has been inflicted on
him, certainly, in such circumstance, if a petition for dissolution of
marriage is filed on that ground and evidence is tendered before the
original Court to allege mental cruelty, it could well be appreciated for the
purpose of dissolving the marriage on that ground.
27. Further, the Supreme Court in the case of Ravi Kumar vs. Julmidevi
(2010) 4 SCC 476 has categorically held that “reckless, false and
defamatory allegations against the husband and family members would
have an effect of lowering their reputation in the eyes of the society” and
it amounts to ‘cruelty’. Similar observations were made by the
Coordinate Bench of this Court in the case of Rita Vs. Jai Solanki (2017)
SCC OnLine Del 9078 and Nishi Vs. Jagdish Ram 233 (2016) DLT 50.
28. The appellant-wife has not been able to justify the ground on which
these complaints were being made. As discussed in the judgments

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 mentioned above, repeated complaints with unexplained allegations to
various agencies cannot be termed as anything but cruelty.
29. The term „cruelty‟ as used in Section 13(1)(ia) of the Act, 1955
cannot be defined in given parameters and there cannot be a
comprehensive definition of „cruelty‟ within which all kinds of cases of
cruelty can be covered and each case has to be considered depending upon
its own unique factual circumstances. In Gurbux Singh vs. Harminder
Kaur, (2010) 14 SCC 301, the Hon’ble Apex Court observed that the
matrimonial life should be assessed as a whole and persistent ill conduct
over a fairly long period of time would amount to cruelty. It was held as
under: -
“The ill-conduct must be precedent for a fairly lengthy
period where the relationship has deteriorated to an extent
that because of the acts and behaviour of a spouse, one
party finds it extremely difficult to live with the other party
no longer may amount to mental cruelty”.

30. Similarly, in Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511, the
Apex Court held as under:-
“101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some
instances of human behaviour which may be relevant in
dealing with the cases of “mental cruelty”. The instances
indicated in the succeeding paragraphs are only illustrative
and not exhaustive:
(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not
make possible for the parties to live with each other could
come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly clear

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 that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and
continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it
makes the married life for the other spouse absolutely
intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused
by the conduct of other for a long time may lead to mental
cruelty.
(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of
one spouse actually affecting physical and mental health of
the other spouse. The treatment complained of and the
resultant danger or apprehension must be very grave,
substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty”.

31. We find that in the present case as well, the disputes emanating
from disrespect to respondent-husband and his family members, frequent
quarrels resulting in various complaints which permeated the entire period
while the parties were together even continued thereafter, persist over a
long period of time resulted in mental agony for which there was no
solution. Such prolonged differences and criminal complaints made the
life of respondent-husband bereft of peace and conjugal relationship
which is the bedrock of any matrimonial relationship. Thus, it can be held
that this conduct of appellant-wife indisputably amount to cruelty, as

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 observed by the learned Judge, Family Courts.
32. The appellant-wife has further claimed in the Appeal for the first
time that the respondent-husband has got married during the subsistence
of their marriage and has two sons. In support thereof, she has placed on
record copies of the complaint dated 24.04.2018 made to SHO, Police
Station Sector 23, Dwarka, complaint dated 17.08.2018 made to SHO,
Police Station Kanjhawala and the complaint dated 24.08.2018 addressed
to CMM, Rohini Courts under Section 200 CrPC. She has also annexed
the affidavits of four witnesses namely Anil, Sachin, Naresh and Mukesh
in support of her averments.
33. The first complaint of alleged marriage of the respondent-husband
to a second woman i.e. Pinki has been made in April, 2018 at the time
when the Divorce Petition was pending before the learned Judge, Family
Courts. No application was filed for leading additional evidence to prove
the allegations made in the said complaint. Further, though a copy of the
complaint under Section 200 CrPC has been filed but no details have been
given if this complaint was ever filed before the Court and what was the
fate of the said complaint.
34. Be that as it may, the allegations of appellant-wife are that the
respondent-husband had got married. However, neither any specific
details nor any proof whatsoever of the alleged second marriage has been
tendered on record or given in the complaints mentioned above. Even if it
is accepted that the respondent-husband has started living with another
woman and has two sons during the pendency of Divorce Petition, that in
itself, cannot be termed as cruelty in the peculiar circumstances of this
case when the parties have not been co-habiting since 2005. After such

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 long years of separation with no possibility of re-union, the respondent-
husband may have found his peace and comfort by living with another
woman, but, that is a subsequent event during the pendency of the Divorce
Petition and cannot disentitle the husband from divorce from the wife on
the proven grounds of cruelty. Moreover, the consequence of such liaison
shall be borne by the respondent-husband, the woman and the children.
The appellant-wife has not been able to prove any other act of cruelty by
the respondent-husband disentitling the respondent-husband from taking
divorce.
35. We hereby conclude that the learned Judge, Family Courts has in
detail considered all the incidents and has rightly concluded that the
appellant-wife had subjected the respondent-husband to cruelty.
36. We find no merit in the present Appeal which is hereby dismissed.
37. The pending applications, if any, also stand disposed of.

(NEENA BANSAL KRISHNA)

JUDGE

(SURESH KUMAR KAIT)

JUDGE

SEPTEMBER 13, 2023

akb/jn

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