ASHOK KUMAR Vs. SMT JYOTI

JUDGEMENT

(1.) The Appellant assails order dated 19.05.2014 of the Family Judge, Ajmer dismissing Matrimonial Case No. 480/2011 declining to grant divorce on grounds of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').

(2.) Learned Counsel for the Appellant submits that it was a marriage by mutual choice on 08.08.2007. A girl child was born on 06.01.2009 who is presently residing with the Respondent. The cruel conduct of the Respondent is apparent from her behaviour on 03.04.2011 when she misbehaved with the Appellant and his mother after they returned at 10.00 p.m having met their sister for which the Appellant had also lodged a report before the Alwar Gate Police and matters were pacified only after their intervention. The Respondent permanently left the matrimonial home on 21.04.2011. The divorce case was filed by the Appellant on 25.08.2011. The Respondent in retaliation filed a criminal complaint under Section 498A IPC against the Appellant and his parents. While the latter were granted anticipatory bail the Appellant had to undergo imprisonment for approximately one week. The trial is still pending which the Respondent actively pursues. The Family Judge had completely erred in appreciation of evidence and connotation of the word "cruelty" in a matrimonial relationship by holding that the behaviour of the Respondent merely constituted normal skirmish of any married life. The threat of committing suicide and deliberate consumption of phenyl are but proof of cruelty. Merely because there may have been no direct evidence in support of the allegations for consumption of phenyl, was not sufficient ground to disbelieve it especially when it was pleaded and stated in his examination-in-chief but no question was asked in cross examination in this regard. The institution of a false criminal case also constitutes cruelty for which reliance was placed on K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

(3.) The Respondent had levelled wild allegations of the Appellant having illicit relations with an office colleague Nirmala. This allegation per se casting a slur on the character, integrity and morality of a married man constitutes cruelty without further more. The Family Judge committed an error of record in holding that no name of the female colleague had been mentioned by the Appellant even though the Respondent had disclosed the name in her additional pleas. Forcing the Appellant to have his separate hearth, home and kitchen from his other family members while living in the same house is further evidence of cruelty. The Respondent in her written statement alleges that the occurrence of 03.04.2011 was a figment of imagination while in her evidence she admits the occurrence and wishes it away as normal ups and downs of a married life. The Respondent in her examination-in-chief has herself deposed that relations between them soured as far back as 2010 on account of the allegations of suspected relations between the said Nirmala and the Appellant. The Family Judge erred in not appreciating that it is the quality of evidence and not quantity which matters. If the evidence led by the Appellant and AW-2, Pavnesh established cruelty, the fact that the Appellant may not have examined his mother and brother was irrelevant. The presumption by the Family Judge that they would have been the best evidence is completely fallacious. The Family Judge has himself observed that there were inherent contradictions in the evidence of the Respondent yet holds the Appellant cannot derive any advantage from the same. If the Appellant had established cruelty in behaviour, the contradictions in the evidence of the Respondent became important. In support of the submission that threats to commit suicide and allegations of having illicit relations outside the marriage also constituted cruelty reliance was placed on Narendra v. K. Meena, (2016) 9 SCC 455.