VISHAL KAPOOR vs PREETI KAPOOR
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th January, 2024
+ MAT.APP.(F.C.) 7/2018
VISHAL KAPOOR ….. Appellant
Through: Mr.Maninder Singh, Sr.Advocate with Mr.Dinhar Takiar, Mr.Yash Singh, Ms.Aekta Vats and Ms.Simran Chawdhary, Advocates.
versus
PREETI KAPOOR ….. Respondent
Through: Mr.Aditya Ranjan, Advocate.
CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
1. The present appeal under Section 19 of the Family Courts Act, 1984 has been filed against the judgment dated 26.09.2017, dismissing the petition for grant of divorce filed by the respondent/husband on the ground of cruelty under Section 13 (1)(ia) of the Hindu Marriage Act, 1955.
2. Briefly stated, the parties got married according to Hindu rites and customs on 22.11.2002 at Delhi and one son was born from their wedlock on 01.02.2004. The child is a special child and is in the care and protection of the respondent/wife/mother.
3. The appellant (husband in his divorce Petition) had asserted in his divorce petition that since the beginning of their matrimonial life, he found undue interference of the parents of the respondent in their matrimonial life. As guided by her parents, the respondent wanted the appellant to severe his relationship with his parents and instead of setting up their abode in his parental home in Mumbai along with his parents, the respondent wanted them to settle with her parents in Delhi. When the appellant expressed his disinclination, he was insulted and threatened with implication in false cases as her mother was in the Supreme Court of India.
4. It was further asserted that they had gone to their honeymoon along with his friend Balwinder Singh and his wife to Gangtok and Darjeeling from 10.03.2003 to 22.03.2003, but the respondent misbehaved and abused him because she was inclined to go to some place outside India for their honeymoon. The appellant claimed that since the beginning the respondent/wife perpetually denied him any physical relationship and even avoided it during their honeymoon in Gangtok.
5. The appellant further asserted that she would go to her parental home in Delhi without informing him and when he confronted her on 26.04.2003, she retorted and threatened him by saying that now you will see what all things I will do to you and your family. Thus, because of these potential threats, the appellant allowed the respondent to reside with her parents for some time so that she could do some retrospection. However, due to her evil design, the trouble started growing between his parents while the respondent was in Delhi at her parental home. He called her back to Mumbai through telephonic call on 02.07.2003, but according to the appellant it turned about to be the biggest mistake of his life. The respondent on returning to Mumbai, tried to widen the gulf between him and his parents who ultimately were compelled to agree to the parties separating and shifting to Delhi permanently.
6. It was further asserted that the respondent returned to Delhi on 11.07.2003 with all her belongings while the appellant joined her after a few days owing to his business commitments. They started residing at H.No.1554, Ground Floor, Outrum Line, Kingsway Camp, New Delhi. The appellant asserted that while the respondent was in Mumbai, she did not disclose that she was pregnant about which he came to know from some other sources. When he confronted her, she replied that since they were not having cordial relationship, they rather get the child aborted. On reaching Delhi on 18.08.2003, he took her to the Clinic but she changed her mind and declined to undergo abortion.
7. The appellant submitted that the interference of her parents continued. He requested her to leave her parents for some time and also called upon them not to interfere in the marital life. She retorted that she cannot leave her parents nor would they leave her. On 20.08.2003, Sh. Kamal Nath, maternal uncle of appellant came to their house on a visit but the respondent without any rhyme or reason, misbehaved and abused him in filthy language and made defamatory remarks against his parents. Then he tried to reason with her parents and advised that he and the respondent should shift to another city for a better living. Therefore, he decided to shift to Lucknow on 08.09.2003. However, on the asking of her parents, the respondent did not accompany him to Lucknow, but surprisingly left the matrimonial home and went to reside with her parents for the next seventeen days in Delhi.
8. After about fifteen days i.e. on 25.09.2003 his parents came to Delhi from Mumbai for making reconciliatory efforts, but the respondent and her parents defamed him by calling him impotent which resulted in enormous loss of reputation as well as physical and mental trauma. He asserted that his life has turned into a living hell. The appellant sought divorce on the ground of cruelty under Section 13(1)(ia) of the Act.
9. The respondent in her Written Statement had contested the petition and denied all the allegations made against her by the appellant/husband. She asserted that the parents of the appellant were not satisfied with the dowry given to her by her parents in their marriage and they made an illegal demand of Rs.10 lakhs in cash. Her parents were able to pay only Rs.3 lakhs in cash, still she was tortured and harassed by the appellant and his parents.
10. The respondent claimed that on account of the dissatisfaction with the dowry given in the marriage, the appellant and his family started harassing, humiliating and misbehaving with the respondent on trivial matters; for instance, they started complaining about her leaving the fan running or for not doing the household work, which shocked her and emotionally shattered her. She alleged that the appellant had joined his parents in raising the dowry demands.
11. The respondent explained that it was the appellant who refused to cohabit with her on account of bringing insufficient dowry. She also asserted that it is the mother of the appellant who did not permit the appellant to have cordial and physical relationship with her and threatened to commit suicide unless the appellant abandoned her. He often stopped having any communication with her for no rhyme or reason.
12. The respondent claimed that when she along with the appellant, came back to Delhi on 08.04.2003, her parents came to receive them at the New Delhi Railway Station, but to her shock, the appellant refused to take her to their house and after much persuasion she was taken to the Kingsway Camp house. However, barely 20 days later, on 28.04.2003, parents of the appellant came to Delhi and in the night her father-in-law called her parents and forcibly sent her to her parental home along with her parents.
13. After about 3-4 days, her father-in-law arranged a meeting with the family friend/ relative Mr. T.R. Kapoor at their residence and after having detailed discussions, appellants parents were convinced to take her back with them to Mumbai as she was not at fault. Though, the parents of appellant agreed initially, but later they went back to Mumbai without informing her on which she called her father-in-law and he remarked that first she should pay Rs.7 lakhs and then only things could be normal.
14. The respondent further asserted that with the intervention of Mr. T.R. Kapoor they started residing together at Kingsway Camp residence w.e.f 27.05.2003, but then again the parents of appellant interfered and at their behest she was sent back to her parental home, while he went to a business tour with his maternal uncle Mr. Mukesh Seth. Thereafter, the appellant did not talk to her for many days and he then went back to Mumbai without informing her.
15. The respondent further asserted that she had called her husband on 02.07.2003 to inform him that she was pregnant and not keeping good health on which the appellant requested her to come to Mumbai. She accordingly reached Mumbai on 06.07.2003 but as soon as she reached her matrimonial home, her mother-in-law became furious and told her that she was not welcome in their house and also threatened to commit suicide by jumping from the fourth floor. The respondent stated that after much persuasion, the appellant agreed to take her to a Doctor for her medical check up. The Doctor advised her complete rest, despite which she was brought back to Delhi by the appellant on 11.07.2003 on account of the tantrums thrown by her mother-in-law. She was again left at her parental home and the appellant returned after forty days, on 18.08.2003. He called her to the Nursing Home to get the baby aborted, but the Doctor advised against it since it was a risk to her life. The appellant remained adamant and became hostile and aggressive and even assaulted her. He left her alone at Kingsway Camp residence and removed all his belongings and shifted out to reside with his maternal grandmother at Jheel Khurenja, Shahdara, Delhi. She made several attempts to call the appellant, but he avoided to talk to her and treated her with cruelty.
16. The respondent further asserted that she gave birth to the son on 01.02.2004 at Holy Family Hospital, but neither the appellant nor his parents either enquired or came to see the child. The entire delivery expenses were borne by her parents. She desperately tried to contact the appellant for a period of five months thereafter, but in vain. She along with the child and her parents, uncle and grandmother went to Mumbai on 10.07.2004, but the appellant and his family members refused to even open the door to allow them all inside the house. She was thus, left with no other option but to file a complaint at Police Station Malabar Hills, Mumbai. She submitted that it is she who has been subjected to cruelty and the petition is liable to be dismissed.
17. The issues were framed on 11.10.2010 as under:
1. Whether the respondent wife has treated the petitioner husband with cruelty after the solemnization of marriage? OPP
2. Whether the petitioner husband is entitled to the relief, as prayed for? OPP
3. Relief.
18. The appellant in support of its case examined himself as PW1 while the respondent appeared as RW1.
19. The learned Principal Judge, Family Court on appreciation of the evidence concluded that there were no specific allegations made or proved by the appellant. He generally asserted that the respondent misbehaved with him and his family members and that there was unwarranted parental interference in their matrimonial life of the parents of the respondent. No specific instances to corroborate these allegations of harassment, cruelty or parental interference were stated or proved by the appellant. He was also not able to prove by any cogent evidence that she was in a habit of frequently going to her parental home. Therefore, the petition for divorce was dismissed.
20. Aggrieved by the dismissal of the divorce petition, the present appeal has been preferred by the appellant/husband.
21. Submissions heard and the record along with the written submissions perused.
22. Admittedly, the parties got married on 22.11.2002 and eventually separated after about eight months on 08.09.2003. During this period, they lived together for about 148 days and thus, the acts of cruelty as claimed by them happened within this short period of eight months.
23. It has emerged from the comprehensive reading of both the parties that the appellant/husband was based in Mumbai along with his parents and after their marriage the respondent joined them in their matrimonial home. The appellant has admitted in his evidence that in the last week of December, 2002 the mother of the respondent came to Mumbai and they both went to Delhi for purpose of getting the passport renewed. The respondent returned to Mumbai after getting her passport made in the first week of January, 2003. From the date of their marriage in November, 2002 till about March, 2003 the parties resided in Mumbai.
24. The appellant had alleged that there was undue interference of the parents of the respondent in their matrimonial life, she had no inclination to stay in the matrimonial home, though the respondent had asserted to the contrary. According to her, her mother in law did not want her to reside in Mumbai. While both have attributed the disinclination to reside in Mumbai on each other, but the fact is that a decision was taken to shift to Delhi. The parties came to Delhi on 08.04.2003, but according to the appellant, respondent was reluctant to accompany him to their house and it was only after much convincing that she agreed to accompany him to the Kingsway Camp residence. The respondent, on the other hand claimed that the reluctance was on the part of appellant to take her to Kingsway Camp house.
25. The respective assertions of the parties establishes that there were definitely some under currents. According to the respondent, after about twenty days of their coming to Delhi, the appellants parents came to Delhi on 28.04.2003 and called her parents and sent her back to her parental home in the night itself on the pretext that they would call her back after 3-4 days. This going back to parental home again is a pointer to the brewing differences inter se the parties.
26. Both the parties state that Mr. T.R. Kapoor, a family friend was asked to intervene who made the parties agree that the appellant shall be taken by the respondent back to Mumbai but he failed to do so. The respondent joined the appellant at the Outrum residence on 17.05.2003 but barely after five days on 22.05.2003, she was forced to go back to her parental home while the appellant went back to Mumbai. She eventually joined the appellant at Mumbai, on 06.07.2023. The appellant and the respondent stayed together in Mumbai and came back to Delhi within a week, on 11.07.2003 and the respondent was left at her parental home from where she returned on 18.08.2003. However, on 08.09.2003 i.e., after about five weeks, the appellant shifted to Lucknow on the pretext of his business and never returned.
27. It is evident from the narration of the above dates that though the parties had been intermittently living together, but there were matrimonial differences which kept cropping up from time to time and the marriage in all survived barely for a period of about one and a half years during which they remained together only for about 148 days. All the efforts made to crease out the differences did not prove to be successful and eventually the parties separated on 08.09.2003.
28. In this context, it would be pertinent to refer to the testimony of RW2 T.R. Kapoor, who was a family friend of the appellants family, and had been requested to intervene to bring an amicable settlement inter se the parties. RW2 T.R. Kapoor has deposed that the appellant was residing with his parents in Mumbai where they had the business of Diamond jewellery which the appellant was doing along with his parents. RW2 T.R. Kapoor had further deposed that in the month of May, 2003, he had three meetings with the parties and he found that there were no serious differences and disputes inter se the parties. The appellant and his parents had told RW2 T.R. Kapoor that they would think over taking the respondent back to the matrimonial home in Mumbai and convey their decision. RW2 T.R. Kapoor also deposed that he was informed that the appellant and the respondent had started residing together in their house in Mukherjee Nagar, but he came to know that after about a week that the respondent was sent back forcibly against her wishes in an auto rickshaw to her parents house. It may be mentioned here that the parties had also conceded that the respondent had joined the appellant at the Outrum residence on 17.05.2003, but left on 22.05.2003.
29. RW2 T.R. Kapoor had further deposed that in his third meeting which he held in Mumbai at the residence of the appellants parents, he again tried to persuade the appellant and his parents to take back the respondent, on which they assured him that they would bring her back to their house in Delhi. It is again not disputed that the respondent joined the appellant at Mumbai on 06.07.2003. From the testimony of RW2/T.R. Kapoor, it is reinforced that there were differences between the parties and endeavour had been made to fix such differences, though apparently all the attempts proved unsuccessful.
30. We may also refer to the Letter dated 21.08.2003 Ex. RW 2/1 written by RW2 T.R.Kapoor to Shri Vinod Kapoor, father of the respondent. The tone and tenor of the said Letter also explains that there were differences and RW2 T.R. Kapoor had intervened to sort out the differences. According to him, the differences essentially were between the mother-in-law and the respondent and through this Letter, he had only cajoled the parents of the appellant to play a positive role and to support the parties who had come to reside in Delhi.
31. From this Letter as well, aside from noticing that there were differences, nothing more emerges. Even if the mother of the appellant was not getting along well with the respondent, but the parents were in Mumbai while the appellant and the respondent tried to set up their independent abode in Delhi. In this regard, reference be also made to the Letter dated 25.08.2003, Ex.RW2/3 written by the father of the appellant to RW2 T.R. Kapoor acknowledging the efforts made by him to bring reconciliation between the parties. He wrote that since there were perceptional differences between his thinking and of RW2/T.R. Kapoor, he conveyed that he would seek intervention of Mr. T.R. Kapoor if required in future. From the testimony and the letter of RW2/T.R. Kapoor as well, it can only be inferred that there were adjustment issues inter se the parties which could not be redressed.
32. What now falls upon this Court is to determine what were the differences on account of which the parties found it difficult to stay together. The appellant had in his testimony deposed that the major reason was the parental interference of the respondent who had more inclination for the parties to settle in Delhi. To honour her wishes, the appellant made an endeavour to settle in Delhi but the differences could not be creased out.
33. We may refer to the assertion of the respondent that the appellant, on getting to know about the pregnancy, had taken her to get the child aborted, but did not succeed as the doctor refused to do so since it was dangerous for her life. The appellant, on the other hand claimed that it was respondent who did not want to carry the pregnancy. Again, it is the case of the respondent herself that she was pregnant when she went to Mumbai on 06.07.2003 and they had visited the doctor who had advised bed rest despite which she was made to travel to Delhi on 11.07.2003. Thereafter, appellant came to Delhi on 18.08.2003 and took her to the Doctor to get the child aborted but did not succeed. There does not seem to be any substance in this allegation of the respondent for the simple reason that if the appellant actually was against the pregnancy, he would have insisted in July, 2003 when the respondent was in Mumbai and they had visited the doctor rather than wait for another forty days when he came to Delhi. This allegation of the respondent seems to be incorrect from her own assertion. To make such serious unsubstantiated allegation is in itself an act of cruelty.
34. The respondent had asserted that the root cause of differences was the mother of the appellant who was completely disillusioned with the dowry and was persistently making a demand of Rs.7 lakhs. From the testimony of the respondent it emerges that she had alleged of being harassed consistently on account of dowry demands. She eventually made a complaint in the CAW Cell which resulted in FIR No.535/2005 under Section 498-A/406/34 IPC. However, the said criminal case has resulted in acquittal on 23.05.2019 as has been stated in the written submissions of the appellant. The appellant has also quoted paragraph 42 and 43 of the judgment dated 23.05.2019, which reads as under :
42. Complainant has not led any cogent evidence in support of her case. She has not been able to prove any demand of dowry by the accused persons, payment of any party by her upon the demand of the accused persons of if any part of her istridhan has been misappropriated by any of the accused persons; no iota of evidence.
43. Case of complainant are full of material contradictions, improvements, exaggerations, inconsistencies and thereby does not inspire confidence and created doubt in the mind of the court, testimony of complainant does not inspire confidence and corroboration… her testimony becomes liable to be rejected.
35. There is a clear finding that all the allegations of constant demands of Rs.7 lakhs or her harassment on account of insufficient dowry had been completely disbelieved in the criminal trial. Aside from the bald assertions, the respondent has not been able to substantiate that she was being harassed for dowry. She has barely stayed together for 148 days in the period of about eight months. Though every aggrieved person has the right to approach the state machinery to exercise their legal remedy and mere filing of a complaint is per se not cruelty, however, it is incumbent upon the wife to substantiate the allegations not only against the husband but also his family members and lead cogent evidence to establish that she was harassed or abused or beaten and humiliated for dowry. Making such frivolous complaints of dowry harassment against the appellant whose pain was aggravated by seeing his parents also suffer the criminal trial along with him for about fourteen years, which are not substantiated by any cogent evidence and ended in an acquittal clearly is an act of cruelty, as has been held in the case of K. Srinivas Vs. K. Sunita X (2014) SLT 126 and Ravi Kumar Vs. Julmidevi (2010) 4 SCC 476.
36. The appellant had also asserted that the respondent had no inclination of having a close physical intimacy with the appellant. He further deposed that on 25.09.2003 his parents came to Delhi from Mumbai for making reconciliatory efforts, but the respondent and her parents defamed him by calling him impotent which resulted in enormous loss of reputation as well as physical and mental trauma. That there were issues of physical intimacy is also corroborated by the submissions of the respondent in her Written Statement that the appellant was not very forthcoming though she claimed that it was because he was also not satisfied with the dowry received in the marriage. From the respective testimony of both the parties, it can be inferred that they did not have healthy, intimate conjugal relationship, which again is a source of making the foundational basis of marriage rocky
and shaky.
37. It is also pertinent to observe that their marriage survived barely for about 148 days and they are living separately since September, 2003 i.e. almost 20 years. There has been no explanation for her failure to join the company of the appellant and he has been deprived of his conjugal relationship for no fault of his. It needs no reiteration that the bedrock of any matrimonial relationship is cohabitation and conjugal relationships. Such long separation with no effort by the wife to resume matrimonial relationship, and unsubstantiated complaints of dowry harassment collectively constitute acts of cruelty, as is held in the case of Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511. 41.
38. We, therefore, conclude that the appellant has proved the ground of cruelty entitling him to divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. We, hereby set aside the decision of the learned Principal Judge, Family Court, and the appellant is granted divorce on the ground of cruelty under Section 13(1)(ia) of the Act.
39. Decree Sheet be prepared.
40. The appeal along with pending applications if any, is accordingly disposed of.
(SURESH KUMAR KAIT)
JUDGE
(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 19, 2024
Va/JN
MAT.APP.(F.C.) 7/2018 Page 14 of 14