SHASHI AHUJA vs ASHOK KUMAR AHUJA

$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 05th October, 2023
+ MAT.APP.(F.C.) 16/2020 & CM APPL. 1795/2020
SHASHI AHUJA ….. Appellant
Through: Mr. C.M. Sharma, Advocate with appellant in person.
versus

ASHOK KUMAR AHUJA ….. Respondent
Through: Mr. Fanish K. Jain, Mr. Manak Goel & Mr. Kapil Chaudhuri, 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 (oral)
CM APPL. 1796/2020 (Condonation of delay)
1. The present application under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the applicant/appellant seeking condonation of 58 days’ delay in filing the present appeal.
2. For the reasons and grounds stated in the present application, the application is allowed, the delay of 58 days in filing the present appeal is hereby condoned.
3. Accordingly, the present application is disposed of.
MAT.APP.(F.C.) 16/2020
4. The present appeal under Section 19 of the Family Court Act, has been filed against the impugned judgment dated 12.09.2019 granting the decree of Divorce to the husband in his petition under Section 13 (1) (ia) of the Hindu Marriage Act, 1955, on the ground of cruelty.
5. Briefly stated, the parties got married on 24.08.1992 at New Delhi, according to the Hindu Rites and ceremonies. A daughter Sakshi Ahuja was adopted by the parties vide Adoption Deed dated 11.10.1999.
6. The respondent/husband (petitioner in the Divorce Petition hereinafter referred to as the ‘respondent’) had claimed that the appellant/ wife (respondent in the Divorce Petition hereinafter referred to as the ‘appellant’) had a lesbian relationship with her mother and their relationship was known to many of their relatives. Because of this relationship, she got married only at the age of 39. Moreover, even after marriage, she used to take leave frequently from her office and go to her mother’s home where she resided with her alone. The respondent husband also claimed that in the year 1999-2000, she again started insisting to stay separately with her mother and when he objected to this, she threatened him with dire consequences.
7. The respondent made further allegations that the appellant had an adulterous relationship with her cousin brother, who used to visit their house frequently at Vikas Puri, Delhi. He claimed that the appellant had no love and affection for him and she failed to sexually satisfy him.
8. It was claimed that she made a false complaint at CAW Cell, Moti Bagh in 1999, but on the counselling by the Investigating Officer, she apologized for her misdeeds and withdrew her complaint. However, even after that there was no change in the ways of the appellant.
9. The respondent husband had also asserted that when the appellant wife was pregnant, she was compelled to spend the entire day in the jail on account of a false complaint by Ms. Madhu Sharma, with whom her brother had illegitimate relationship, which led to the termination of pregnancy. This caused immense mental cruelty to the respondent husband.
10. Further, it is claimed that because of the torture and conduct of the appellant wife, he lost his job in 2000-2001. The wife also resigned from her job in FCI, without the consent of the husband, merely to harass him. The husband then shifted to a job in Noida, where he started residing for five days and spent the remaining two days in Delhi. However, with the sole objective of harassing the respondent, she started staying with her mother at her house in Paschim Vihar, instead of staying in their matrimonial home at Vikas Puri, Delhi.
11. It was asserted that the daughter also suffered because of the conduct of the appellant and even teachers of the daughter advised the respondent that the mother should stay with her daughter for at least two days in a week so that the daughter can get the love and affection. She failed to provide proper care to the child even when they were residing together at Vikas Puri. The appellant gave more attention to the children of her brother whereby causing inferiority complex in the daughter. But the appellant paid no heed and continued to stay with her mother.
12. On 05.06.2008, the wife along with the daughter suddenly came to his Noida house in his absence and when he returned from his office, she shouted and abused him in the presence of the neighbours and ultimately with the intervention of the police, she agreed to return to Delhi. Similar incident happened on 6.06.2008, i.e. the next day, when she gathered the neighbours at Vikas Puri house and used abusive language against the respondent.
13. The husband took a conciliatory approach and made an application at Patiala House Legal Aid Centre for re-conciliation and custody of the child however, the appellant refused to appear.
14. The respondent asserted that the appellant along with their daughter, had separated from the petitioner on 06.06.2008, for reasons best known to her and she also threatened him that she would never let him meet their daughter.
15. The respondent further submitted that on 02.12.2008, he was arrested by the Meerut Police, on the basis of false and frivolous complaint and he remained in jail for more than one week. This caused severe grievance to him as his father had expired recently and he could not attend his prayer meeting due to his imprisonment.
16. Faced with continuous threats of lodging false and frivolous complaints, he was left with no option but to make the complaint dated 15.01.2009 to the SHO, Police Station Vikas Puri, Delhi and to the Superintendent of Police, SP City Office, Noida.
17. Having been subjected to the continuous cruelty by the wife, the respondent sought divorce on the ground of cruelty which was granted vide the impugned Order.
18. The appellant/wife in her Written Statement asserted that it was in fact the respondent, who was cruel to her as he used to make demands for dowry and tortured her physically and mentally. It was explained that the respondent was a divorcee at the time of their marriage and had one child from his first wife and he had divorced his first wife on the ground of she having bad character.
19. She claimed that the respondent was proud of his job as he was getting a salary of Rs.80,000/- per month. It was his motto that the appellant shall not go for any job and she was forced to resign from her service. She was willing to continue with her job but had been threatened that in case she did not resign, she would be turned out of the matrimonial home.
20. The appellant wife denied all the allegations of adulterous relationship levelled by the respondent husband. She however, admitted that the respondent husband used to visit her on every Saturday and Sunday, while he was posted at Noida.
21. The appellant had asserted that she was physically beaten and was forced her to go to her parental home. She did not take any action with the hope that good sense would prevail. On a query to the respondent husband, she came to know that he had illicit biological relationship with another lady and asserted that he would marry her. However, she was eventually compelled to file a police complaint at CAW Cell, Moti Bagh, Delhi, where the respondent apologized for his abusive conduct on which she withdrew her complaint.
22. She admitted that on 05.06.2008, she along with her daughter had visited the Noida house of the respondent husband. However, she claimed that it was the respondent who had denied that she was his wife and that the child was their daughter. He had also beaten and abused her in front of the neighbours. She was therefore, compelled to shift to her parental home at Paschim Vihar, where she has been residing with her daughter.
23. It was asserted that a conspiracy was hatched and she was taken to Haridwar by the respondent, where he tried to kill her. Consequently, she got an FIR bearing No. 221/2008, under Section 498A/504/506/34 IPC, registered at Mahila Thana Meerut, Uttar Pradesh on 23.11.2008, against the respondent, his brother and his brother’s wife and sister.
24. She admitted that an application for re-conciliation and custody of the child was filed by the respondent but she was unable to appear as she apprehended danger to her life. She has asserted that a false complaint has been made by the respondent on 15.01.2009, to the police.
25. She had claimed before the Family Court that her divorce petition filed by the husband was liable to be dismissed.
26. The issues were framed on 10.12.2010 as under:
“(1) Whether the respondent subjected the petitioner to cruelty, after solemnization of the marriage, as alleged in the petition? OPP

(2) Relief.”

27. The respondent/husband in support of his case appeared as PW-1 and examined three more witnesses. PW-2 Mr. Vinod Kumar Sharma, Clerk from Punjab National Bank, to prove the bank statement of the appellant’s husband. PW-3 Mr. Israr Babu, alternate Nodal Officer, Vodafone Services Limited, to depose that Mobile No. 9873437155 was in the name of one Subodh Mahajan. PW-4 Mr. Arvind, Ahlmad from the Court of Ms. Collette Rashmi Kujur, MM Mahila Court, Tis Hazari Delhi, produced the case file pertaining to complaint case 432/1, titled Smt. Shashi Ahuja vs. Ashok Kumar Ahuja & Ors.
28. The appellant/wife appeared as RW-1, in support of her case.
29. The Learned Principal Judge, Family Court while considering the evidence on record observed that it had been proved that the appellant had made a false and frivolous complaint that she was beaten by the petitioner. Moreover, she got the respondent arrested after about 3-4 days of demise of his father, and he was unable to participate in the last ceremonies of his father. She also made the complaint in CAW Cell, which she had withdrawn subsequently. The appellant wife was unable to support her allegations of being subjected to cruelty or to dowry demand. Her claim that she was beaten up was not proven by any medical record or otherwise. The allegations made by the appellant that the respondent was having illicit relationship with a woman without any basis, was again an act of cruelty committed by the appellant.
30. Hence, the Ld. Judge, Family Court concluded that all the acts of the appellant as discussed constituted cruelty towards the respondent/husband and the divorce was granted vide impugned judgment dated 12.09.2019.
31. Aggrieved by the grant of divorce, the present appeal has been preferred by the appellant/wife.
32. Submissions heard from the learned counsels for the parties and the document as well as the evidence has been perused by the Court.
33. It is an unfortunate case where the parties with the hope of leading a blissful married life got married on 24.08.1992. Thereafter, the appellant got pregnant twice but she unfortunately suffered miscarriage both times. The parties then jointly decided to adopt a daughter Sakshi vide Adoption Deed dated 11.10.1999. They continued to reside together till June, 2008 i.e. for about sixteen years but the disquiet in their relationship was pervasive. The appellant frequently visited her parental home much to the dislike of the husband. The job exigencies took the respondent to Noida and he started staying in Noida since 2001for five days and for two days he would come to his house at Vikas Puri, New Delhi.
34. The appellant resigned from her job but according to her, she had been compelled to resign by the respondent/husband. A counter assertion was made by the respondent that she herself had resigned to harass him. It is incomprehensible how a husband can be harassed on account of a wife resigning from her job. The only observation that can be made in this regard is that the respondent husband started residing in Noida for five days and would come to his home in Vikas Puri for two days in a week.
35. The appellant has made frivolous allegations of illicit relationship of the husband with another woman with whom he claimed he intended to get married. However, as rightly observed by the learned Principal Judge, no cogent evidence whatsoever could be led by the appellant in support of her assertions.
36. The Supreme Court in the case of Vijay Kumar Ramchndra Bhate vs Neela Vijaykumar Bhate (2003) 6 SCC 334 observed that such  allegations, which constitute grave assault on the character, honour and reputation and health of the accused, amount to the worst form of cruelty. Such unsubstantiated assertions made in the Written Statement, being of a quality which cause mental pain, agony and suffering are sufficient by itself to amount to the reformulated concept of cruelty in matrimonial law.
37. Placing reliance on this judgement, the Supreme Court, in the case of Nagendra vs K. Meena (2016) 9 SCC 455, observed that unsubstantiated allegations of the extra-marital affair with the maid levelled by the wife against the husband, amount to cruelty. When there is a complete lack of evidence to suggest such an affair, the baseless and reckless allegations are serious actions which can be a cause for mental cruelty warranting a decree of divorce.
38. Thus, the observations of the learned Principal Judge that such unsubstantiated allegations of the extra-marital affair against the respondent by the appellant were an act of cruelty, do not merit any interference.
39. The final event which precipitated the separation of the parties is the incident of 05.06.2008, when admittedly the appellant had along with the daughter, visited the house of the respondent in Noida. According to the respondent, the appellant abused him in the presence of the neighbours; such conduct again is source of tremendous cruelty as it bound to embarrass and humiliate him amongst his neighbourhood where he resides, thereby lowering his prestige as a respectable citizen. The appellant has admitted having gone to the house but has not been able to show any satisfactory explanation for the public scene created on 05.06.2008. If she had certain grievances against the husband they cannot be addressed by creating a public display. The better way would have been to sort it out amicably or within the walls of house and not by making a public scene leading to immense embarrassment for the husband.
40. In the similar manner, the appellant has made reckless allegations of dowry demands, physical and mental torture by the respondent. She made one complaint initially in CAW Cell but withdrew it on the premise that the respondent apologized for his conduct. However, the FIR under Section 498A and other Sections had been registered against the respondent on 23.11.2008 i.e., after about 16 years of married life. The onus was on the appellant to prove the allegations of dowry demands and of physical and mental torture by way of independent cogent evidence, more so because admittedly since 2001, the respondent was residing for five days in a week in Noida while the appellant and the daughter were residing in her parental home where the respondent used to visit them on weekends. Pertinently, no cogent evidence has been led by the appellant in support of her assertions.
41. It is also pertinent to note the surrounding events at the time of the FIR was registered, as consequent to the filing of this FIR, the husband was arrested at the most inopportune time on 02.12.2008, it being 3-4 days after the demise of his father. It was because of his arrest that he was unable to perform the last rights of his father which had caused immense grief to the respondent. What can be more harrowing than to be detained in jail on the allegations of dowry after 16 years of married life, and due to which he could not discharge his pious obligations towards his father.
42. The Supreme Court in the case of Raj Talreja v. Kavita Talreja, (2017) 14 SCC 194, while relying on 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 907
43. Thus, making such serious allegations of dowry harassment, is an act of cruelty.
44. Finally, we may note that the parties are living separately since 2008 and more than 15 years have gone by since then without any re-conciliation between them. The husband, while there were disputes between the parties, had made efforts for re-conciliation but admittedly, the appellant had refused to join the re-conciliation proceedings on the pretext of there being threat to her life. When the proceedings were to be held in the Legal Aid Cell Patiala House Courts, it is difficult to apprehend as to what kind of threat to her life could have been there in visiting the Court complex. The conduct of the appellant clearly reflects that she had no intention of resuming the conjugal
relationship, which is the bedrock of any marriage.
45. The Apex Court in the case of Samar  Ghosh v. Jaya Ghosh (2007) 4 SCC 511 laid down certain guidelines with respect to Section 13(1)(i-a) of the Hindu Marriage Act and observed that in a marriage where there has been a long period of continuous separation as it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties and can be termed as mental cruelty.
46. We find that the respondent had established that he was subjected to cruelty by the appellant wife and the learned Principal Judge Family Court has rightly granted the divorce under Section 13 (1)(ia) on the grounds of cruelty.
47. There is no merit in the Appeal which is hereby dismissed, along with the pending applications, if any.

(SURESH KUMAR KAIT)
JUDGE

(NEENA BANSAL KRISHNA)
JUDGE
OCTOBER 05, 2023
RS/ Nk

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