Judgment:
ORDER
1. This judgment will decide both the appeals, i.e., FAO Nos. 77 and 78 of 1991 since these arise out of the common judgment dated 15th March, 1991 passed by Mrs. Manju Goel, Additional District Judge, Delhi in HMA 596/83 under Section 12(l)(c) of the Hindu Marriage Act (hereinafter referred to as the 'Act') seeking a decree for annulment of marriage, and HMA 270/84 under Section 13(1)(ia)(iii) of the Act seeking a divorce.
2. Both the petitions were consolidated and tried together. The evidence was recorded only in HMA No. 596/83. HMA 270/84 was comprehensive to include the facts of other earlier petition as well, i.e., HMA 596/83.
3. The relevant facts set out in the petitions are that the parties were married on 22-4-83 according to Hindu rites and ceremonies and the conjugal life of the parties lasted only till 20-9-83. The respondent Anita Sharma, who was employed as an officer in the State Bank of India, Kota, lived with the Appellant in his house at JP-87, Maurya Enclave, Delhi-34 intermittently. According to the Appellant, the Respondent's behavior was such as would demonstrate that she was mentally unsound and was suffering from some mental disorder. In fact, according to him, she was suffering from Paranoid Schizophrenia which was kept secret from him and his consent to the marriage was, thus, obtained by playing fraud on him.
4. The case set out by the Appellant is that on 23-4-83 after the marriage, on reaching the matrimonial home, the Respondent kept sitting in a corner with a sullen face. The Appellant took the Respondent for a stroll in the evening and during the walk the Respondent started shouting that no one on the earth could stop her from visiting Kota whenever she desired. The Appellant's elder brother, thereafter, was told by her that she enjoyed when other were pained by her tantrums. On the night of 23-4-83 Respondent spurned every effort of the Appellant to consummate the marriage and, on the other hand, the Appellant was asked by her whether he was married earlier. The parties went on a honey-moon on 29-4-83 to Shimla. According to the Appellant the Respondent suffered from obsession psychosis and washed her hands several times and insisted that both of them should take full bath after performing marital intercourse. During the stay in Shimla whenever they went out for a walk, the Respondent checked and rechecked the locks on the boxes and door and returned to check after a walk of 10 to 15 yds. The Respondent talked many times incoherently and declared that she was not an ordinary girl and was blessed with supernatural powers and she predicted that the Appellant would die in two years.
5. On 8-5-83 during the ceremony of launching her in household chores, she started crying loudly when she was asked to clean the floor and she herself prepared asalt-dish and later on quarrelled that she was not asked to prepare a sweet dish. On 9-5-83 she was asked to get up at lunch at 1 O'clock when she cried that no one should wake her up while she was sleeping. On the following day when the Appellant's mother did not wake her up for lunch she became violent and forcibly took the flour from the Appellant's mother and threw the flour in the refrigerator and locked herself in the bed-room as she was offended for not being offered foods before the Appellant's mother took her meals.
6. On 11-5-83 the Respondent's father took the Respondent to Kota from Delhi. On the Appellant's objection that why was she going to Kota, the Respondent said that she had to go to Kota once a month without divulging the reason. The Respondent did not come back from Kota for two months till24-7-83. During this period she wrote a very nasty letter.
7. On 24-7-83 the Appellant along with his elder brother went to Kota to bring the Respondent back. The Appellant reminded the Respondent about the nasty letter she had written to him and thereupon the Respondent shouted at the Appellant that he was not even comparable to her 'chappals' and that he should rather apologize. The Respondent accompanied the Appellant back to Delhi on25-7-83.
8. On 8-8-83 the Respondent and the Appellant went to Haridwar where again she was asked by the Appellant to behave properly. The Respondent told the Appellant that she thought that she had been brought to Haridwar to be drowned in the Ganges. On Pan having been offered by the Appellant the Respondent asked the Appellant as if it contained poison. In the night Respondent started crying loudly and told the Appellant that she was not fit for a marital life and that the Appellant would come to know about the reason in due course of time. On return from Haridwar the Respondent insisted on cleaning the Almirah of the Appellant's mother and insisted on opening it. When the Appellant objected to this she pushed him around with great force.
9. On 17-8-83 the Respondent went back to Kota promising to return within a week.The Appellant went to bring her back on 26-8-83 but the Respondent refused to come back. In the evening of 26-8-83 the Respondent came in the room with anger and told the Appellant that if he would not stay in Kota over night, she would never forgive him and thereafter went into hysteria. On 10-9-83 the Respondent returned to Delhi and started fighting with the Apepllant's mother and later she told the Appellant that at times gone evil spirit possessed her. The Respondent developed some vaginal cyst. The Respondent refused to consult the Appellant's sister who was a doctor and told the Appellant that his sister would get poison injected in her body. On 14-9-83 the Appellant took the Respondent to her uncle's place so that the Respondent could live there for a few days as he was going out to Kanpur on official tour. The mother of the Respondent was at her uncle's place on account of some litigation in Delhi. On the next day the Appellant came back from Kanpur and reached the house of the uncle where he learnt that the Respondent had got vaginal cyst removed by an operation without mentioning this fact to the Appellant earlier. On 17-9-83 the Respondent came back to the matrimonial home.
10. On 19-9-83 when the Appellant returned home, he found the honey-moon photographs in intimate poses in the picture frames which earlier had the photographs of his late father. On Appellant's having objected to her behavior the Respondent told that she was the master of the house and would do whatever she thought was suitable. Later the Respondent accused the Appellant's mother of being jealous of the happiness of the couple and she pounced on his mother and shouted that she would break the window panes, crockery etc. and would put the house to fire and break one of the photo frames containing the photograph of his father and there under started weeping loudly.
11. In the afternoon of 19-9-1983, when Appellant's brother-in-law Dr. Vinay Misra, who was present in the house, tried to calm her down, she confided to him and behaved in the same manner as in her parental home.
12. In the evening of the same day, i.e., 19-9-1983, the Respondent accosted her mother-in-law and addressed her as -- ' OShameless Creature why are you sitting on the Sofa given by my parents. If you have a little self-respect, get up from there. When you will die, I will put your husband's picture frames on your Chest and burn you along with these.'
13. In the late evening, i.e., on 20-9-1983, Respondent's father and uncle came to the Appellant's house. Mr. Sharda, neighbour of the Appellant, and Appellant's sister were also present. On seeing her father, the Respondent started weeping loudly and called the Appellant a 'butcher'. The Respondent's father asked the Respondent to pack her luggage and when the Appellant asked her to stay, she removed her Chappal instantly and threw the same at the Appellant and shouted that she would suck the blood of the Appellant and kill him. She further stated that the Appellant was a stigma on Respondent's life. The Respondent's father, however, advised her that she should know that they were doctors in that house and they would know about everything and they would lose their case. While leaving the house, the Respondent threatened the Appellant that she would implicate him and his mother in Dowry Act cases. In fact the Appellant, his mother and sisters have been falsely implicated in false cases. According to the Appellant this is an extreme case of cruelty on the part of the Respondent towards the Appellant and his family which has resulted into a harrowing experience for the Appellant and he has apprehensions that it would be very harmful and injurious for him to live with her.
14. In his replication, it has been further stated that the Respondent had lodged the complaint with Anti-Dowry Cell of police department and copies were sent by her to Home Minister, Prime Minister and Directorate of Social Welfare, Delhi. During the investigations the Directorate of Social Welfare and Delhi Police found nothing against the Appellant and his family members. Consequently, the Respondent changed the contents of her application and lodged a fresh complaint to Delhi Police on fake grounds in order to harass the Appellant and his family members.
15. The Appellant was convinced that the Respondent was suffering from some mentaldisease named Paranoid Schizophrenia and such disease was hereditary and could be further transmitted to offsprings. The Respondent left the matrimonial home on 20-9-1983 and now she is living with her uncle at Rana Pratap Bagh, Delhi.
16. The Respondent in the written statement has denied all the allegations of cruelty and of menial disorder. According to her, she has behaved like a responsible wife and the allegations which are alleged to have been made on 23-4-1983 or at Shimla and on subsequent occasions have been totally denied. She has alleged that from the day she has been taken to the matrimonial home, she has not been treated properly by the Respondent (Appellant?) and the members of his family. It has been alleged against her that she talked to one Atul, who was the relative of the Appellant and had been served food along with the Respondent. On the bridal night of the same day, the Appellant himself came late at night from the house of her sister and he himself expressed that he was not able to consummate the marriage with the Respondent. She has further denied that she has spurned every effort of the petitioner for consummation of marriage on that date or afterwards or she has put any question whether the Appellant was married earlier. She has further denied that she has been suffering from any mental disorder and she washed her hands 5/6 times almost on ten occasions, a day or rechecking of locks of boxes and doors again and again. She has also denied the allegation made against her about her behavior on the day when she was launched in kitchen. She has also denied that she was in the habit of sleeping in the day time as being a working lady she has to work in the office. The alleged incident which took place over the lunch not being served in time or awakening her up in the day time is also denied. Further the writing of the letters have also been denied. Rather, it has been alleged that the Appellant has sent a photo copy of the letter, sent by her, to her father. It has further been alleged by her that the Appellant on visiting Kota in July, 1983 scolded the Respondent and told her that the women is equal to man's shoe and it could be changed at any time. He refused to have meals. She has denied having behaved in manners as alleged -in Haridwar. She has further stated that she had developed a vaginal cyst and since the Appellant and his family members did not look after her, she was dropped at her uncle's house where her mother also had arrived from Kola and the Respondent was got operated upon in a nursing home to get vaginal cyst removed while the Appellant had gone to Kanpur but he had full knowledge but had never missed his official tour to Kanpur and left the Respondent at her mother's shoulders. She has further stated that she was forced by the Appellant's mother to wash clothes, clean utensils and cook the meals despite knowing it well that it was not advisable for the Respondent to sit on the floor or walk as the stitches of the Respondent were broken and bleeding had started from the wounds. She has further stated that she has been most submissive, respectful and well behaving person. It has been denied that the Respondent ever informed her uncle to come to the Appellant's house along with Respondent's father who was in Delhi at that time. According to her, on 19-9-1983 the father of the Respondent telephoned the Appellant in his house that he was arriving at Delhi on 20-9-1983 for his official visit in the morning and he also enquired from him about the health of the Respondent and his mother. The Appellant kept him in dark. On 20-9-1983, the father of the Respondent came to Delhi and after doing his official work along with his younger brother Mr. R.P. Sharma came to the Respondent's house in the evening at about 7.00 p.m. However, they were not treated properly by the Appellant and the members of his family. On seeing the father, the Respondent started weeping and expressed him that she was not well and that she immediately required the services of a lady doctor. On this the father of the Respondent told the Appellant and his mother that why they had not cared for her despite having a lady doctor in their family. On this the Appellant's mother started abusing the Respondent and clearly told that she would not keep the Respondent in her house, and further told her father that he was at liberty to take her back to his house. As a matter of fact, according to the respondent she always felt happy with the Appellant except when his sister and mother created some misunderstanding by demanding dowryof Rs. 35,000/- for making construction on the first floor of the house and Rs. 9,000/- for buying a scooter from the parents of the Respondent. During stay at Kota on 26-8-1983 such a demand was also made to the mother of the Respondent. She left the matrimonial home along with her father on 20-9-1983. All the incidents at the house of the Appellant alleging cruelty or mental disorder or throwing of chappal either on her uncle or the Appellant or his mother have been denied.
17. In the replication, however, these allegations have been denied. The allegations of dowry demand has been cooked up and fabricated to cover up mischief and misdeeds of Respondent and her parents.
18. On the pleadings of the parties the following issues were framed ;
(In FAO 78/91/HMA 270/84)
'1. Whether the Respondent has treated the petitioner (now Appellant) with cruelty? OPP
2. Whether the Respondent is suffering from mental disorder continuously and intermittently ' of such kind and to such an extent that the petitioner cannot reasonably be expected to live with her?
3. Whether the petitioner has condoned the cruelty, if any, committed by the Respondent?
4. Relief.'
(In FAO 77/91/HMA 596/83)
'1. Whether the Respondent was suffering from mental disorder/ schizophrenia before marriage and this fact was concealed at the time of marriage?
2. Relief.'
19. It would be appropriate to decide first FAO 78/91 which has arisen out of HMA 270/84, which is a comprehensive petition.
20. Two relevant issues which can be conveniently disposed of together are :
' 1. Whether the respondent has treated the petitioner with cruelty? OPP
3. Whether the petitioner has condonedthe cruelty, if any, committed by the respondent?'
Section 13(1)(ia) and (iii) reads as under:
'13.(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
.....
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
.....
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind an.d to such an extent that the petitioner cannot reasonably be expected to live with the Respondent.
Explanationn -- In this clause,--
(a) the expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression 'psychopathic disorder' means a persistent disorder or disability of mind (whether or not including sub normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
.....'
21. This clause (ia) of the Act was amended in 1976. Before the amendment of 1976, the Act contained a different formulation of cruelty. Then the petitioner was required to show that the Respondent had treated him or her with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the Respondent. The formulation of cruelty after the amend-ment of 1976 has been brought at par with its formulation under the Special Marriage Act, and the Special Marriage Act has borrowed it from the Matrimonial Causes Act, 1950. The change in the formulation of cruelty under the Hindu Marriage Act not merely brought it at par with the Special Marriage Act, but has also simplified it. Cruelty in such cases has to be of the type which should satisfy the conscience of the Court to believe that the relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress. Cruelty as a ground of divorce under Section 13(l)(ia) of the Act is a conduct of such type that the petitioner cannot reasonably be expected to live with the Respondent. Now the act or omission or conduct which constitute cruelty need not cause any sort of apprehension in the mind of the petitioner.
22. The endeavor of the Appellant has been to cite various incidents which, according to him, clearly demonstrate the cruel treatment given by the Respondent to the Appellant.
23. Mr. R. K. Aggarwal, learned counsel for the Appellant, at the very outset vehemently contended that in paragraph 36 of the petition it has been clearly stated that while leaving the house on 20-9-1983, the Respondent threatened the Appellant that she would implicate him and her mother-in-law in Dowry cases and in fact his mother and sister have been falsely implicated by her. In replication also it has further been elaborated that the Respondent had lodged the complaint with Anti-Dowry Cell of Police Department and copies were sent by her to Home Minister, Prime Minister and Directorate of Social Welfare, Delhi. During the investigations the Directorate of Social Welfare and Delhi Police found nothing against the Appellant and his family members. Consequently, the Respondent changed the contents of her application and lodged a fresh complaint to Delhi Police on fake grounds in order to harass the Appellant and his family members.
24. The law is well settled that the false complaints, if made, to the police and other authorities by one spouse against the other for demand of dowry and about the ill-treatment, it will amount to cruelty. It has been established on the record, according to him, that the Respondent filed false, scandalous, baseless and unproved complaints against the Appellant to Anti-Dowry Cell of police and other departments, which has resulted into a harrowing experience for the Appellant and in the facts and circumstances of the case will amount to cruelty. This itself, according to him, is enough for the grant of divorce, as prayed for by the Appellant.
25. In this connection, in FAO (Main) No. 180 of 1984 -- Vinod Kumar Sharma v. Smt. Nutan Sharma -- decided on 28-2-1986: (reported in 1986 (1) Hin LR 625) by Mahinder Narain, J. of Delhi High Court, this principle has been laid down that the complaints, if filed, to the employer or personal authority and the police, which are found to be baseless and scandalous may mount to cruelty. Similar view has also been expressed by the Punjab & Haryana High Court in Smt. Savita Chadha v. Ravinder Singh Chadha, (1987) 3 Hin LR 412, that false complaints against the husband made to the police may amount to cruelty. Reference may also be made to Rajkishore Prasad v. Smt. Raj Kumari Devi, : AIR1986Pat362 .
26. In order to appreciate the argument of Mr. Aggarwal, it would be necessary in this context to see the allegations in this regard made in the plaint. In paragraphs 36 and 38 of the petition, it has been stated that the Respondent left the matrimonial home on 20-9-1983 and while leaving the house the Respondent threatened the Appellant that she would implicate him and her mother-in-law in Dowry Act cases and in fact his mother and sister have been falsely implicated by her in false cases. In replication also it has further been elaborated that the Respondent had lodged the complaint with Anti-Dowry Cell of Police Department and copies were sent by her to Home Minister, Prime Minister and Directorate of Social Welfare, Delhi. During the investigations the Directorate of Social Welfare and Delhi Police found nothingagainst the Appellant and his family members. Consequently, the Respondent changed the contents of her application and lodged a fresh complaint to Delhi Police qn fake grounds in order to. harass the Appellant and his family members. In other words, according to the allegations, the Respondent has threatened the Appellant that he would implicate him in Dowry Act cases, on 20-9-1983 when she left her matrimonial home in Delhi.
27. The relevant facts that emerge from the pleadings are that the father of the Respondent along with his younger brother, i.e., uncle of the respondent on 20-9-1983 came to Delhi and visited the house of the Appellant in the evening at about 7.00 P.M., and the Respondent left the matrimonial home on 20-9-1983 and has not returned thereafter to her matrimonial home. Furthermore while leaving the house, the Respondent threatened the Appellant that she would implicate him and his mother in Dowry Act cases. In the replication, the Appellant has supplemented the allegations that certain complaints were, infact filed before the Anti-Dowry Cell of the police department and other departments. As a result thereof, investigation in such cases was made by the Anti-Dowry Cell and certain criminal complaints were filed against the Appellant and other members of his family. The Respondent has made allegations in the written statement that as a matter of fact she always felt happy with the Appellant except when his sister and mother created some misunderstanding by demanding dowry of Rs. 35,000/- for making construction on the first floor of the house and Rs.9,000/- for buying a scooter from the parents of the Respondent. During stay at Kota on 26-8-1983 such a demand was also made to the mother of the Respondent.
28. The question that arises for determination in this context is whether the allegations made by the Respondent against the Appellant and other members of his family about the demand of Rs. 35,000/- for the construction of the house and Rs. 9,000/- for purchase of scooter, are true or false. In casethey are found to be false, malicious and scandalous in my opinion, then it itself will constitute cruelty to the Appellant. At the very outset it may be noted that the allegations made by the Appellant in para 36 that while leaving the house on 20-9-1983, the Respondent threatened the Appellant that she would implicate him and her mother-in-law in Dowry Act cases and in fact his mother and sister have been falsely implicated by her in false cases, has not been specifically denied by the Respondent in the written statement. The averments made in the replication to the effect that they have been implicated in false cases and false complaints have been filed with the Anti-Dowry Cell of the Police and other department also has not been denied. No endeavor has been made by the Respondent to seek permission of the Court for rebutting the averments made in the replication or for furnishing better particulars to the allegations in the petition.
29. The Respondent appeared as RW 1 and in her examination-in-chief, she has clearly admitted that she applied to the Social Welfare Department so that there could be reconciliations as the appellant-husband was hesitant to take her back as he has already declared in the neighborhood that she was mad. She has further admitted that she has no grievance against the Appellant. This clearly demonstrates that the complaints have been filed by the Respondent in order to bring about reconciliation which also stands corroborated from the statement of PW 2 Sushma Lall that record reveals that the Respondent came to their office on 2nd and 3rd May, 1984 and stated that she wanted to live with the Appellant and wanted a compromise. It has also been admitted by her that she has also filed complaints in 1988 under Dowry Prohibition Act as the Appellant refused to keep her and in those complaints, the Appellant, his mother and sister were summoned as accused. It has further been stated by her that the behavior of the Appellant towards (her) was alright. Whenever her sister-in-law and mother-in-law complained against her, he used to stop talking to her and did not take foods with her. Apart from this, he behaved rudely. She likedher husband's personality and habit except that he was unable to protect her. No doubt she has stated that for the first time a demand for Rs. 35,000/- was made before she went for honey-moon. But she could not give the exact date, but it was in between 23rd and 28th April, 1983. She has further stated that the demand of scooter was made on her return. In between 5th and 11th May, 1983, demand of Rs. 35,000/- was made second time. She stated that she had not noted the dates of demands anywhere.
30. In my opinion, in the face of this testimony of the Respondent that she has nothing against her husband, she liked her husband, she had filed complaints for reconciliations and that she has not been able to give the exact date and time as to when the demands of dowry was made, the story seems to have been cooked up by her to meet the case of the Appellant. This theory of demand of dowry also stand falsified that she filed admittedly complaint before the Magistrate and the Appellant, his mother and sister were summoned as accused therein and the said complaint was dismissed in default. Her version that she was threatened by the Appellant not to appear, and consequently for her non-appearance, the complaint was dismissed, cannot be accepted. This seems to be a fabricated story. Had it been so, she would not have filed another application on 1-7-1988 for restoration of the complaint, which was also dismissed by tbe learned Magistrate on the ground that the Court has become functus officio. The Respondent again filed another complaint under the Dowry Prohibition Act on the same facts. The learned Magistrate after recording evidence summoned the accused persons and the Appellant had to challenge that order summoning the accused on the second complaint on same facts before the District Judge, who accepted the petition on 25-2-1992 and set aside the impugned order for summoning the Appellant. Copy of that order of the District Judge has been placed on record by the Appellant in these proceedings.
31. From these facts it becomes abundantly clear that the Respondent is determin-cd to harass the Appellant and the application was dismissed in default not because she could not appear under threat from the Appellant but because she could not prove her case. Not only that it is an admitted case between the parties that she filed complaints before the Anti-Dowry Cell of the police and other department and the matter was investigated by one Ms. Sushma Lall.
32, Ms. Sushma Lall, who appeared asPW2, has stated that she knew both the parties to the petition. The Respondent had filed a complaint against the Appellant in the Anti-Dowry Cell of the Social Welfare Department of Delhi Administration on 29-2-1984. This complaint was also against the mother and sister of the Appellant. The complaint was that the Appellant and his family members were demanding dowry. A photo copy of the complaint has been exhibited as Ext. PW 2/1. After investigation they found that no case for dowry was made out. About two months prior to the filing of the written complaint, the Respondent had come to their office along with her brother and parents to make enquiries as to how the Appellant and his parents and other family members be got arrested for the demand of dowry. They had also stated that they wanted to harass the Appellant. In cross-examination she has stated that the records revealed that the Respondent visited two months prior to the filing of the complaint and in fact she had gone to their office on 2nd and 3rd May, 1984 and requested them again and again that she wanted to live with the Appellant and as such she wanted to compromise. She has also made enquiries in the neighborhood of the Appellant's house and found that the Appellant was enjoying good reputation in the locality although it has come in the evidence she has not been able to give the date, month and when she visited the neighbours of the Appellant, and their names. However, on suggestion in cross-examination that she did not make enquiries from the Appellant about his reputation, she denied such suggestion which shows that she did make enquiries from the neighborhood and they did not say that the Appellant was not enjoying any good reputation. Her findings have not beenexhibited. It is no doubt true that Mark B is the summary sheet of her findings and has not been exhibited and cannot be read in evidence. There is, however, nothing otherwise on account of which her other oral testimony should be disbelieved, more particularly when she is an independent witness and has not been shown to be biased in favor or against the party.
33. It appears that the complaints were used by the Respondent as a lever to force the Appellant for compromise/reconciliation, as according to Ms. Sushma Lall as well as Respondent's own evidence, she has filed these complaints for reconciliation/compromise. No doubt Ms. Sushma Lall has stated in her cross-examination that Commissioner of Police had sanctioned the requisite permission for prosecuting the Appellant but that itself does not indicate that the case is genuine. Ultimately the complaints were dismissed.
34. This statement of Ms. Sushma Lall fully corroborates the version of the Appellant. Complaints filed by the Respondent against the Appellant in the Anti-Dowry Cell and also complaints in the Court of competent jurisdiction in which the Appellant and other members of his family, namely, his mother and sister were summoned as accused which were ultimately dismissed, supported by other evidence produced by the Appellant. It stands established that the complaints filed by the Respondent were false and scandalous and were intended to harass the Appellant and amounts to cruelty on the part of the Respondent and against the Appellant and on this ground alone, the Appellant is entitled to divorce. In the context of such allegations, the evidence of PW 6 -- Smt. Tara Wati -- may also be noted wherein she has denied that she ever demanded Rs. 35,000/- for the construction of the house and Rs. 9,000/- for the purchase of scooter from the father of the respondent while he visited their house. PW 1 Appellant also himself has denied the demand of dowry and is corroborated by PW 6 and other evidence.
35. However, there are certain other acts or conduct complained of by the Appellantagainst the Respondent although that Itself may not amount to cruelty but if the cumulative effect of all these acts is taken into consideration, such acts amount to cruelty in this case.
36. In his statement as PW 1, the Appellant has stated that the Respondent did not allow him to touch her and consummate the marriage for several days and he could only consummate at Shimla on 30th April, 1983 when they went to Shimla on 29th April, 1983 for honeymoon. This fact has not been rebutted by the Respondent and it stands proved that for the first seven days and night, the Appellant was not allowed to consummate the marriage. On 30th April, 1983 he got temperature because of taking baths which the Respondent insisted him to take before and after sexual intercourse.
37. After having examined and scrutinized the evidence of the Appellant corroborated by his other evidence, particularly of PW 6 Smt. Tara Wati, mother of the Appellant, in my opinion, the following incidents stand proved. There is no satisfactory rebuttal except that of RW 1 Respondent herself which version cannot be accepted for the reasons already discussed.
38. On 10-5-1983, after the Respondent-wife abused his mother in law as to why she has taken food before the Appellant, the Respondent locked herself in a room and the Appellant had to be called from office at 3.30p.m. causing great mental tension and agony to the Appellant and his old mother. The Respondent wrote a nasty letter to the Appellant making illegal demands for cloths for her brother, maid servant and gifts etc. and abused him and his mother for not following certain customs/rituals etc. which caused mental agony to the Appellant, a copy of which was sent to Respondent's father. Her father wrote back that everything was fair in love and war. On 19-9-1983, the Respondent had put the honey-moon photographs in intimate poses in his father's picture frame. He told her that he could have brought new picture frames for her use. At that time, his mother also came into the room and same thing was conveyed to her by his mother also.On this the Respondent broke picture frames of his revered father, fought with the Appellant and his mother, threatened to burn the whole house by putting gas cylinder on fire. On the evening of 20-9-1983 the mother of the Appellant was sitting in a drawing room, where the Respondent came and said as to why she was sitting on the sofa given by her parents and if his mother had little self-respect, she should get up. She told her mother when his mother would die, she would put the picture frame of his father and burn it along with her. The same day, i.e., 20-9-1983 when the father and uncle of the Respondent came to the house of the Appellant, she started weeping and said that since the Appellant had called them, she would kill him. She also said that the Appellant was a stigma on her life and that she would suck his blood, She also threw Chappals on the Appellant in the presence of her father, her uncle, Appellant's mother and sister and called him butcher. She also threatened that she would implicate him and other family members in false dowry cases.
39. No hard and fast rule can be laid down as to what acts or conduct will amount to cruelty in any given cases. What may amount to cruelty in one case may not amount to cruelty in another case. In deciding whether or not a particular state of affairs amounts to legal cruelty, the court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and manners of the parties. Whether acts and conducts complained of constitute cruelty have to be construed in reference to the whole matrimonial relationship. It may be that various acts or conduct complained of, by itself and in isolation to each other, do not amount to curelty, but in their over-all effect they may amount to cruelty.
40. In the present case, apart from the false and scandalous allegations made by the Respondent before the Anti Dowry Cell and other departments and prosecution of the Appellant, his mother and sister in competent court of law coupled with above incidents, iftaken cumulatively into account leaves no room of doubt that the respondent has treated the appellant with cruelty.
41. The marriage has listed only from 22-4-1983 to 20-9-1983 for about five months and thereafter both the parties are living seprately. The marriage has irretrievably broken down. I with a view to ascertain the wishes of the couple held a conference in the chamber. The husband was not prepared at all to take the respondent back. However, the respondent expressed her keenness to go back to her matrimonial home with her husband-appellant. The question arises whether she was really sincere in making this offer. To me it appears it was not a genuine offer. This impression stood confirmed that after the arguments were concluded she filed an application for return of jewellery. This clearly demonstrates that she was not keen to go to the appellant but was making incorrect statement in order to persuade the Court to believe her version in the reply.
42. Mr. Aggarwal, counsel for the appellant, submitted, when the marriage has irretrievably been broken, without repair, the marriage should be dissolved on this ground and decree for divorce should be granted.
43. Mr. Mehra, counsel for the respondent however, contradicted such a submission and contended that such ground has not been provided for under the Act and cannot be a ground for divorce. His submission is well founded and finds support from the judgment of this Court passed in Ashok Kumar Bhatnagar v. Smt. Shabnam Bhatnagar, AIR 1989 Delhi 121, wherein it has been held:
Irretrievable break down of the marriage, is not contemplated to be one of the grounds for dissolution of the marriage, in the Scheme of the Hindu Marriage Act, and as such cannot be by itself taken as a ground for a decree for dissolution of marriage. It is pertinent to note that the law as it stands, the causes of action for a decree of dissolution of marriage are either fault oriented or defeat based. In spite of recommendations of the Law Commission in its Report, the legislature did not consider it advisable to introduce irretrievable break down of marriage, as oneof the grounds for a decree of divorce.' Further, it has been observed that the appellant-husband who was harassing the wife-respondent with dowry demands, and abandoned her, he cannot be allowed to take advantage of his own wrong, and seek a decree for divorce without establishing the legal ground of desertion or cruelty on which he founded his petition and on ground that the marriage has irrevocably broken down.
44. In the present case, however, cruelty stands established and, thereforee, the question of taking advantage of his own wrong does not arise.
45. Mr. Mehra, learned counsel for the respondent strongly contended that insofar as making false accusation by the respondent against the appellant for filing compacts in Anti Dowry Cell are concerned, there are no pleading in the petition nor is there any evidence to that effect. Only certain references have been made in the replication, which is not a part of the pleadings. In fact, according to the Rules framed by the Delhi High Court under R. 7G(iv), in the case of cruelty specific acts of cruelty and the occasion when and place where such acts were committed have to be pleaded. In support of his submissions he has cited Amarjit Paul Singh v. Kiran Bala, and Parshotam Krishan v. Prem Lata, (1979) 15 Delhi LT 324 and certain other authorities. There is no dispute about this principle. The appellant should furnish all particulars as required under the Rule so that the respondent must have an opportunity to meet the case of the appellant. Vague allegations of cruelty are not sufficient to grant divorce. However, in the present case, if the pleadings in the petition are taken into consideration, in my opinion, the appellant has supplied/furnished adequate particulars as required under the Rules insofar as filing of false complaints with the Anti Dowry Cell and other authorities are concerned. In paragraph 36 thereof the appellant has stated while leaving the house, the respondent threatened the appellant that she would implicate him and his mother in Dowry Act cases. In fact the appellant, his mother and sisters have been falsely implicated in false cases. It has also been stated inthe petition that the respondent left the matrimonial house of the appellant in the late evening of 20-9-1983 when the father and uncle of respondent came to their house in Delhi, viz. JP 87, Maurya Enclave, Delhi-110034. The occasion and circumstances in which she stated that she would implicate the appellant, his mother and sister in Anti Dowry cases were that on the evening of 20-9-1983 the father and uncle of the respondent came to their house. The respondent started weeping and said that since the appellant had called them she would kill the appellant. She also stated the appellant is a stigma on her life and she would suck his blood. Her father said that she should know that there were doctors in that house and they would know about everything and she would lose her case. On this she stated that they were not doctors but butchers and the appellant was also a party to them they would kill her and on leaving the house with her father and uncle she took her cloths and jewellery and further told that she would implicate them in dowry cases. In the replication, again, it has further been stated that the respondent has lodged the complaint with anti-dowry cell of Police Department and copies were sent by her to Home Minister, Prime Minister and Directorate of Social Welfare, Delhi. During the investigations the Directorate of Social Welfare and Delhi Police found nothing against the appellant and his family members. Consequently the respondent changed the contents of her application and lodged a fresh complaint to Delhi Police on fake grounds in order to harass the Appellant and his family members. The particulars of cruelty given in the petition insofar as lodging of the complaints to the anti dowry cell of police department is concerned, are sufficient in the petition itself and which further stand supplemented in the replication. It is no doubt true that in normal course the particulars of cruelty given in the replication, should have been incorporated in the main petition itself, if necessary by amending the petition, but this itself in the present case is not fatal to the present petition. As already discussed the petition itself provides for adequate and sufficient particulars of cruelty in conformity with the rules. Evenotherwise, in case the respondent was feeling handicapped in meeting the case of the appellant, for lack of particulars, she could have made an application under O. 6, R. 5 for better particulars. He relied upon the judgment passed by Mahinder Narain, J. in Smt. Savitri Balchandani v. Bulchandani, : AIR1987Delhi52 wherein it has been held (paras 49 and 50):
In case any respondent in a matrimonial case considers that what has been stated in the petition is not adequate for the purpose of formulating defense, it is always open to the respondent to make an application under O. 6, R. 5 of the C.P.C., for furnishing of further and better particulars. Unless an application for better particulars is made before filing of the written statement, at the stage of the appeal, or even otherwise, no grievance can be made that rules relating to the contents of the petitioner had not been complied with. Thus, if an objection is taken about the deficiency of pleadings, that the pleadings lack material particulars, an opportunity must be given to make up the deficiency, if it can be made up. It is only when the petitioner refuses to comply with the orders of the Court regarding furnishing of the particulars that further action can be taken by the Court.
46. In these circumstances it cannot be said that the particulars of cruelty insofar as the filing of false complaints before the anti dowry cell are concerned are wanting in the petition and even if it is found that in some respect it is wanting then in that case the respondent should have made an application under O. 6, R. 5 of the Code Civil Procedure seeking further particulars which has not been filed in the present case. thereforee, this contention of the learned counsel for the respondent cannot be accepted,
47. It was next contended by Mr. Mehra that the complaints to anti dowry cell of the Directorate of Social Welfare by the respondent are not false but true and correct and the evidence in that respect by Ms. Sushma Lall, P.W. 2, Probation Officer, Directorate of Social Welfare,. Delhi Administration cannot be relied upon. She was not & summoned witness and has come on her own in Court.In fact, according to him, this witness was a tutored witness and was won over by the appellant. Furthermore, the enquiry was conducted at the back of the respondent and such an enquiry cannot be relied upon. There is no material on record that this witness is a tutored one and she has been won over by the appellant. In fact, no question/suggestion in this regard has been put to this witness in the cross-examination that she is a tutored one and has deposed in order to help the appellant. There is no material on record to show whether she has come on her own accord or summoned through Court. The argument of Mr. Mehra, that ex parte enquiry was held against the respondent and thereforee the testimony of P.W. 2 should not be accepted is also not tenable as for the purpose of investigation, the complainant may not necessarily be associated. I cannot overlook the fact that Ms. Sushma Lall is a Probationary Officer of the Directorate of Social Welfare and is an independent witness and her testimony easily cannot be brushed aside.
48. Mr. Mehra next contended that the allegations of cruelty are quasi criminal in nature and the burden to prove the same is on the appellant. He has relied upon Pal Rampal v. Santosh Rampal, (1985) 28 Del LT 102. In this context reference may also be made to the case of Dr. N. G. Dastane v. Mrs. S. Dastane, : [1975]3SCR967 , the Supreme Court has laid down (para 23):
Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must thereforee prove that the respondent has treated him with cruelty within the meaning of S. 19(1)(b) of the Act.
Further (para 24):
The belief regarding the existence of a fact may be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favor of theexistence of the particular fact. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second.
49. In my opinion, having regard to the evidence produced by the parties and the tests laid down by the Supreme Court of balancing the probabilities for establishing the existence of facts, the appellant has established his case of cruelty, as already discussed.
50. Counsel for the respondent while relying on Satisder Lal Gupta v. Swam Lata Gupta, (1980) 18 Del LT 15 contended that before conduct can be called cruel, it must touch a certain pitch of severity. This has been variously described as 'inexcutable, unpardonable, unforgivable or grossly excessive' and 'willful and unjustifiable acts inflicting pain and misery', but the commonest description now is 'grave and weighty'.
51. In the present case, circumstances do not warrant such a conclusion. In this connection, suffice it to say that the case cited by the learned counsel was of excessive drinking and not of false complaints and is, thereforee, clearly distinguishable. However, as already discussed, the law is settled that filing of false complaints to the police and other authorities and initiation of false prosecution amounts to cruelty. This submission of the learned counsel, thereforee, must fail. Both the issues are, thereforee, decided in favor of the appellant-husband and against the respondent.
52. The next issues that arise for determination in these appeals are whether the respondent is suffering from mental disorder/ schizophrenia before marriage and this fact was concealed at the time of marriage or after the marriage. Issue No. 2 in HMA 270/84 and Issue No. 1 in HMA 596/83 can be conveniently decided together.
53. According to the appellant, the appellant has also taken this ground of mental disorder in HMA 596/83 for nullity anddissolution of marriage under S. 12(l)(c) and 13(1)(iii) of the Hindu Marriage Act on the ground that his consent for marriage was obtained by fraud as the respondent before marriage was suffering from mental disorder/ schizophrenia before the marriage and is also suffering after the marriage. No doubt the endeavor of the appellant has been to show and demonstrate that the respondent was suffering from mental disorder/schizophrenia and he cannot live with the respondent. In the pleadings and evidence he had tried to show that her behavior was abnormal and that she was suffering from schizophrenia which was kept secret from him and his consent for marriage was obtained by playing fraud on him. The respondent washed her hands several times and was checking locks again and again, and she insisted for full bath after performance of marital intercourse during their stay at Shimla in spite of the fact that the appellant was suffering from fever; the respondent cried loudly at times or was suffering from some kind of obsession before the marriage and used to say that she had super-natural power and at one stage predicated that the appellant would die in two years. He has cited various instance of throwing chappals and displaying abnormal or hysteric behavior, as already stated in the petition, in order to demonstrate that she was suffering from schizophrenia. He has also tried to demonstrate by stating various facts in his evidence. In my opinion the appellant has not been able to establish that she was suffering from mental disorder/schizophrenia and prove these issues. Whether or not she is suffering from Schizophrenia, it depends mainly on the medical evidence. The appellant has produced Dr. Bimal Chaudhary as P.W. 3 in order to demonstrate that the respondent is suffering from mental disorder or schizophrenia, Dr. Chaudhary has stated that he is a M.B.B.S. and has passed his diploma in Psychiatrist in 1975. He has worked as a Registrar in G. B. Pant Hospital from 1977 to 1980. He worked as Lecturer in the Maulana Azad Medical College. Since 1982 he is in private practice. He has produced a certificate Ext. P.W. 3/1 dated 13-10-1983 issued by him. According to thiscertificate, the respondent was examined by him and he found that she was suffering from Schizophrenia. The respondent has denied that she was ever examined by Dr. Chaudhary. Dr. Chaudhary has stated that he observed the respondent in a park in Connaught Place hear bank whose name he did not know. Normally it is not the practice of the doctors to examine a patient in a park. His statement cannot be relied upon for the reason that he knows the sister of the appellant Mrs. Dr. Misra who is also a doctor working in the same complex. He also knew .. the husband of his sister Dr. Misra. He has also stated that Ms. Veena Chaudhary and the sister of the appellant have worked together and possibly they had friendly relations with each other. In these circumstances P.W. 3 cannot be considered as an independent witness. Furthermore, the doctor has not produced any register of appointment of patients in order to show that she was examined by him and thereforee his testimony does not inspire confidence. The instances of behavior of the respondent cited by the appellant in order to substantiate that the respondent was suffering from mental disorder are also not of such a nature which would show that she was suffering from schizophrenia. On the other hand, the respondent has produced Dr. K. M. Aggarwal who is M.D. Psychiatry and is a psychiatrist in Shahdara Hospital for mental diseases. He examined the respondent himself as a member of the medical board comprising of Dr. A. K. Biswas, Dr. A. D. Nayar and himself who were all working at the Shahdara mental hospital. According to the opinion of the Board at Ext. R. W. 3/1, respondent is not suffering from any psychiatric illness or schizophrenia.
54. It may be noted that the respondent was examined by the Medical Board of Shahdara Hospital for mental diseases under the order of the Court dated 22-3-1988 on the application filed by the appellant. In face of the authoritative opinion of the medical board it stands established that the respondent is not suffering from mental disorder. In this context the judgment of the Supreme Court in Ram Narain Gupta v. Smt.Rameshwari Gupta, : AIR1988SC2260 may be noted. This is an illustrious judgment on schizophrenia and the Supreme Court has explained what schizophrenia is. The Supreme Court in that case has held that the context in which the ideas of unsoundness of 'mind' and 'mental disorder' occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the 'mental disorder'. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other Degree of mental disorder must be proved. In the present case, as already stated, there is no medical evidence to prove mental disorder of the respondent and having regard the test laid down by the Supreme Court of Schizophrenia, the respondent cannot be said to be suffering from schizophrenia mental disorder as alleged by the appellant and that further in such circumstances, the question whether the appellant can reasonably be expected to live with other does not arise. thereforee, both the aforementioned issues are accordingly decided against the appellant and in favor of the respondent.
55. Another contention of Mr. Mehra may be noticed. According to him, once the Court disbelieves the story of the appellant that the respondent is not suffering from schizophrenia, the Court should throw out the case on the ground of cruelty as well as both the grounds are interlinked. I regret I am unable to agree with this view. Both the grounds are separate and distinct and these have to be taken separately and distinctly.
56. In the light of what is discussed above, I allow FAO 78/91 and dissolve the marriage between the parties by granting decree of divorce and consequently set aside the impugned judgment of the Additional District Judge. FAO 77/91 is, however, dismissed. In the circumstances, there will be no order as to costs.
57. Order accordingly.