* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: October 05, 2023

Pronounced on: April 02, 2024
+ MAT.APP.(F.C.) 33/2022
SH. AVNESHWAR SINGH ...... Appellant
Through: Mr. Sudhir Nandrajog, Senior
Advocate with Mr. Kanishk Ahuja,
Advocate

Versus
SMT.MONIKA .....Respondent
Through: Ms. Priya Puri & Mr. Ranjan Dubey,
Advocates

CORAM:

HON'BLE MR. JUSTICE SURESH KUMAR KAIT

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

JUDGMENT

SURESH KUMAR KAIT, J

1. The present appeal has been filed under Section 19 of the Family
Courts Act, 1984, read with Section 28 of the Hindu Marriage Act, 1955
against the impugned judgment and decree dated 18.12.2021 passed by
learned Principal Judge, Family Courts, Southwest District, Dwarka, New
Delhi in HMA No. 1417/2017.
2. The learned Family Court vide impugned judgment has dealt with two
petitions. One, preferred by the appellant-husband under Section 13-1(ia) of
the Hindu Marriage Act, 1955 (HMA No. 1417/2017) seeking divorce from
MAT.APP.(F.C.) 33/2022 Page 1 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 husband wife and second, petition preferred by the respondent-wife under
the provisions of Section 9 of the Act seeking Restitution of Conjugal
Rights( HMA No. 1416/2017). The learned Family Court vide order dated
20.04.2019 directed that these petitions shall be tried together and evidence
led in HMA No. 1417/2017 shall be considered in both the petitions, being
the lead case.
3. Relevantly, the learned Family Court vide impugned judgment dated
18.12.2021, has dismissed the petition seeking divorce preferred by the
appellant-husband and has also dismissed the petition preferred by the
respondent-wife seeking Restitution of Conjugal Rights. It is against the
dismissal of petition under Section 13 (1) (ia) of the Act, the appellant has
preferred the present appeal.
4. The marriage between the parties was solemnized on 25.01.2011
according to Hindu Rites and Ceremonies at New Delhi and a male child
was born out of this wedlock on 26.09.2011. The parties have been living
separately since 06.09.2011.
5. The appellant-husband in his petition under Section 13 (1) (ia) of the
Act averred before the learned Family Court that soon after their marriage,
the respondent showed her discomfort and in their short span of living
together, he had endured severe mental torture and anguish from the
respondent-wife. The respondent-wife allegedly conveyed to the petitioner-
husband that the marriage was coerced upon her by her parents, and she
displayed a lack of interest in the marital bond. Following their marriage, he
observed the respondent's disloyalty and frequent visits to her parents’
house.

MAT.APP.(F.C.) 33/2022 Page 2 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 6. The appellant-husband asserted in his appeal that he had been
subjected to grave mental torture and agony by the respondent-wife. He
claimed that she had threatened him with a kitchen knife in March, 2011
indicating her intent to harm him if he refused to allow her to visit to her
parent’s house. The respondent-wife neglected her marital responsibilities
and insisted on extravagant demands, like a big LCD TV, car, mobile phone,
laptop, and similar items, surpassing the appellant -husband's financial
means.

7. The appellant further asserted that on 12.04.2011, the respondent

inadvertently sent a message containing vulgar and unacceptable language
about his parents, wherein she wrote, “Anu went to Preet Vihar with the old
man to buy a scooter. The greedy old man isn't giving us a TV or a car, and
I want an expensive and latest scooter for myself”, which caused great
mental agony to him. He immediately contacted the respondent's parents and
informed her father about the incident and also expressed concern over the
respondent's regular demands for items beyond his financial means, such as
a big LCD, cash, mobile phone, and laptop. The respondent's brother, who
was present with her parents, verbally abused him and his parents, even
making threats of violence. This distressing message further strained their
relationship. Despite his attempts to reconcile, threats and confrontational
behavior from the respondent's family persisted.

8. The appellant further averred that on 23.05.2011, respondent verbally

abused his parents, causing his mother to become unconscious and be
hospitalized while he was at his sister’s place to board the flight to
Ahmadabad, where he was working. But he had to cancel his plans and
MAT.APP.(F.C.) 33/2022 Page 3 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 return to his parent's house. He could eventually leave for Ahmadabad on
May 25, 2011.

9. The appellant alleged that respondent was in the habit of leaving

matrimonial home and the Mediator- Mr. Deshraj and her parents had to
persuade her to join his company and she finally came to Ahmadabad on
11.07.2011.

10. The appellant alleged that during the course of her pregnancy, she
expressed dissatisfaction with various hospitals where she was taken for
check-up but ultimately showed satisfaction in Max Hospital. She never
bothered the difficulties endured by him, arising from changes in hospital
arrangements and the financial burden he shouldered alone. Having stated
so, on 06.09.2011, the respondent-wife left with her parents taking all her
istridhan including, jewellery etc. with her.

11. The appellant asserted that on 26.09.2011, respondent gave birth to a

baby boy but showed displeasure and ignored the appellant-husband. When
the child was named Tejeshwar Singh, she instructed the hospital staff not to
record the name until her parents approved it.

12. On 27.09.2011, the respondent raised objections with regard to

keeping of child’s name and insisted upon approval from her parents. When
her parents arrived on September 28, 2011, her parents verbally abused the
appellant and his parents and threatened their lives. Apprehending danger to
their lives, the appellant with his parents got a peshbandi report lodged with
the police station Indirapuram, UP in the night of 28/29.09.2011 for their
safety.

MAT.APP.(F.C.) 33/2022 Page 4 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 13. The appellant alleged that the parties lived together for a brief period
of 2-3 months and have been living separately since 06.09.2011 and since
after the birth of their child on 26.09.2011, the respondent has been living at
her parents’ house. Also, multiple legal disputes have filed by the parties in
the span of 10 years.

14. The appellant asserted that on 13.01.2012, the respondent-wife made

an abusive phone call to him and his parents. Since then, she has also been
sending complaints to his employer, the Reserve Bank of India, with the
intention of causing him embarrassment and humiliation in front of his
colleagues.

15. According to appellant, he was left with no option but to file a

petition under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 seeking
divorce from respondent-wife. However, the same was dismissed vide the
impugned order.

16. The Respondent / wife in her written statement filed before the
learned Family Court, refuted all the accusations against her, asserting that it
was the appellant who had deserted her and their son. She recounted various
instances of mistreatment and neglect, including the appellant’s mother
taking her jewellery after the wedding and the appellant’s refusal to provide
adequate household items. She alleged that appellant's mother insisted that
her parents should have provided customary household articles for the
marriage and requested her to convey to her own parents to arrange for these
items. Additionally, she mentioned appellant's frequent harassment for
insufficient dowry and his failure to provide financial support for her needs.

MAT.APP.(F.C.) 33/2022 Page 5 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 17. The respondent alleged that during their honeymoon in Kochi on
12.2.2011, she discovered appellant-husband conversing with someone over
a mobile phone at 2:30 AM. Upon confrontation, he admitted to speaking
with his ex-girlfriend, Anjana, and instructed her to address Anjana as 'Didi'
(elder sister). Furthermore, he disclosed his intentions for all three of them
to reside together in the near future .On 08.03.2011 respondent received a
call from a girl named Preeti, claiming to be the appellant's girlfriend,
further complicating their relationship. This event adds to the existing
tension and distrust between the couple.

18. After conception in the first week of March, 2011, she experienced
medical complications, however, neither the appellant nor his parents
showed concern in seeking medical attention from a reputable doctor. The
respondent alleged that despite being advised complete bed rest, she was
coerced by appellant's parents into cooking food using mustard oil, despite
her discomfort with it. ⁠

19. The respondent averred that on 12.04.2011, the appellant rebuked her
father over the phone in a very rude manner, making false and frivolous
allegations that the respondent had been making extraordinary demands
such as mobile phones, laptops, etc. The parents of the respondent
immediately reached the matrimonial house in Vaishali, Ghaziabad, and on
the illegal and unjust demand of the appellant and his family members,
purchased a laptop and a mobile phone.

20. On 18.4.2011, she recounted instances of physical abuse in detail,

alleging that she was violently pushed by the appellant in front of his mother
and confined to a room for an extended period. She also asserted that the
MAT.APP.(F.C.) 33/2022 Page 6 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 appellant showed a lack of concern for her well-being, citing incidents
where he left her alone while she was sick and prevented her from attending
her MBA exam on 14.05.2011.The appellant and his parents took the
respondent to Vaishali on 21.05.2011. However, on 23.05.2011, the
appellant called her father and requested him to take her away.
Consequently, her father brought her back to her parental home.

21. After some reconciliation, she decided to join company of appellant-

husband on 08.07.2011 in Ahmedabad. Unexpectedly, on 18.08.2011, the
respondent was informed by the appellant that she needed to go to Delhi as
he had to prepare for the Civil Services Examination. She was compelled to
board the flight for Delhi, and upon arrival, she was picked up by her
parents who took her to her parental home from the Airport.

22. Even though appellant had come to Delhi while the respondent was in
advance stage of pregnancy, but on 6.09.2011, he and his father departed for
Ahmedabad (Gujarat), leaving her in the matrimonial house with her
mother-in-law. Soon thereafter, the mother-in-law instructed the respondent
to return to her parental home by contacting her father, resulting in
significant mental trauma during her advanced stage of pregnancy. Also,
when she was admitted to Max Hospital and the appellant and his family
was duly informed, but no one cared to visit her. On 25.09.2011,
Dr.NeenaBehl, who was treating her, informed the appellant via mobile
phone that the condition of the child and the respondent was critical.

23. On 26.09.2011, respondent underwent surgery, resulting in the

premature birth of a baby boy. The appellant and his father arrived at the
hospital around 6:00 PM on that day and instead of inquiring about the well-
MAT.APP.(F.C.) 33/2022 Page 7 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 being of his wife and new born son, the appellant chose to inquire from the
attending doctors about the procedure for getting the name of the child
registered with the Municipal Corporation of Delhi. The child remained in
NICU for about a month. She had undergone a major surgery and was
advised complete bed rest, but nobody from the appellant's family ever
visited the hospital during this period. Following the delivery, she made
numerous attempts to reach her husband to join them at their matrimonial
home with their minor son, but received no response.

24. On 04.04.2012, she went to join her husband at his posting with the
Reserve Bank of India but found the door locked and received no response
to her calls from her husband. Consequently, she returned to her parental
home with her minor son. Subsequently, she made numerous attempts to
contact her husband and his family members, but to no avail.

25. On the pleadings of the parties, the following Issues were framed by
the learned Family Court on 05.12.2015 in petition under Section 13 (1) (ia)
of the Act being HMA No.1417/2017:-

i. Whether the respondent has treated the petitioner with

cruelty after solemnizing of marriage all 25.01.2011, as
detailed in the petition? OPP
ii. Whether the petition is not maintainable in view of the
preliminary objections taken by the respondent in their
written statement? OPR
iii. Relief.

26. Similarly, vide order of even date, the following Issues were framed
in petition under Section 9 of the Act (HMA No. 416/2017) preferred by the
wife:-
MAT.APP.(F.C.) 33/2022 Page 8 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 i. Whether the respondent has withdrawn from the society
of the petitioner without reasonable excuse and the version
of the petitioner in the petition is true?
OPP
ii. Whether the petition is not maintainable in view of the
preliminary objections taken by the respondent in his
writ/en statement?
OPR
iii. Relief.

27. The parties examined themselves in the evidence. The

appellant/husband got himself examined as PW1 and the respondent/wife
got herself examined as RW1.
28. Vide impugned judgment dated 18.12.2021, the learned Family Court
dismissed the petition preferred by the appellant-husband seeking divorce
and also dismissed the petition preferred by the respondent-wife seeking
Restitution of Conjugal Rights. The appellant before us has challenged
dismissal of his petition under Section 13 (1) (ia) of the Act.
29. Submissions heard.
30. The marriage between the parties was solemnized on 25.01.2011
according to Hindu Rites and Ceremonies at New Delhi and a male child
was born out of this wedlock on 26.09.2011.

31. Pertinently, the learned Family Court while dismissing the appellant’s
petition under Section 13 (1)(ia) of the HMA, 1955 observed that the
appellant has accused the respondent of committing cruelty by narrating
various incidents, including threats by brandishing a knife, and sending
vulgar messages, however, has failed to provide sufficient proof of these

MAT.APP.(F.C.) 33/2022 Page 9 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 claims, such as not filing a complaint to the police in respect of the knife
incident and not presenting the alleged message as evidence.

32. Also, with regard to the appellant’s allegation of entering into an

altercation with respondent’s father in the market or the scene at his house
where his mother became unconscious, the learned Family Court has held
that the appellant has failed to provide concrete evidence or witnesses to
support these claims.

33. It is also relevant to note here that in both the petitions preferred by
the parties i.e. under Section 13(1)(1a) of the Act and Section 9 of the Act,
the learned Family Court relied upon the pleadings and evidence recorded in
the lead case being HMA No. 1417/2017. Also that the respondent/wife was
only partially cross-examined and her cross-examination could not be
concluded as she absented herself and so, her evidence was taken to be
closed.

34. The learned Family Court in respondent’s petition under Section 9 of

the Act, seeking Restitution of Conjugal Rights, observed that no evidence
was led by her to show that she was thrown out of the matrimonial house by
the appellant. The learned Family Court observed that the allegation of the
appellant-husband that the respondent inadvertently sent a message to him
on 12.04.2011, which contained unacceptable language for his parents,
which caused great mental torture to him, observed that “the words
“Budha” “Lalchi Budha” admittedly used by the respondent against the
father of the petitioner are certainly derogatory and not expected to be used
by daughter-in-law for her father-in-law”. Further, even though the learned
Family Court took note of the admission of respondent in DV Act
MAT.APP.(F.C.) 33/2022 Page 10 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 proceedings, wherein she admitted that she had used such language for her
father-in-law but held that “This allegation in no manner can be taken as to
satisfy the conscious of the Court that because of this conduct of the
respondent it would have been impossible for the parties to live together
without mental agony, torture or distress”.

35. In our considered opinion, the learned Family Court has failed to
appreciate that spouses engaging in defamatory language directed towards
one’s in-laws, not only undermines the dignity and reputation of the
individuals but also erodes the trust and respect necessary for a healthy
marital bond. The respondent’s admission to sending a message containing
derogatory language towards the appellant’s father demonstrates a lack of
respect and consideration within the relationship. These actions undermine
the foundations of mutual respect and support essential for a healthy marital
bond.

36. Further, it is not in dispute that the respondent-wife had sent various
complaints to the Reserve Bank of India against the appellant, which fact
she has admitted in her cross-examination by stating that these complaints
were made after their separation. Whether the complaints were false or true,
irrespective of this fact, making derogatory complaints to the Employer of
spouse, with intent to harm professional reputation and financial well-being,
is nothing but cruelty. Making such complaints demonstrate lack of mutual
respect and goodwill, which is crucial for a healthy marriage and merely by
stating that such complaints were made after the parties have separated, in
no manner absolves a spouse from the guilt of committing cruelty on the
receiving end.
MAT.APP.(F.C.) 33/2022 Page 11 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 37. In the case of Joydeep Majumdar Vs. Bharti Jaiswal Majumdar
2021 SCC OnLine SC 146, similar defamatory complaints were lodged with
the husband's superiors in the Army, leading to a Court of Inquiry and
negatively impacting his career advancement. The Court noted that when
such allegations come from an educated spouse, they have the potential to
irreparably harm the appellant's character and reputation among colleagues,
superiors, and society at large. The wife's explanation that the complaints
were made to preserve the marital relationship cannot justify her persistent
efforts to undermine her husband's dignity. In such circumstances, it's
unreasonable to expect the wronged party to continue the marriage, and
there is sufficient justification for separation.
38. In her written statement, the respondent wife stated that she had not
filed any official complaints with authorities regarding her husband’s
alleged extramarital affairs. This indicates her decision not to take formal
action despite being aware of the situation. The Supreme Court in the case
of Ravi Kumar Vs. Julmidevi (2010) 4 SCC 476 has 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.” The inaction on the part of respondent to make a
complaint against appellant’s alleged illicit relations, shows that by raising
such frivolous allegations, she had committed immense mental cruelty upon
the appellant.
39. The appellant and respondent only lived together for a brief period of
less than an year and after birth of their child, they have entered into
multiple legal disputes, lasting over 10 years.

MAT.APP.(F.C.) 33/2022 Page 12 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 40. The details of all the litigation between the parties, at the time of
passing of impugned judgment, are as under:-
(i) Maintenance Petition U/S 125 Cr.P.C. Case No. 629/2017,
(ii) Proceedings U/S 12 of the Protection of Women Against
Domestic Violence Act Case No. 56/2016,
(iii) Application U/S 340 Cr.P.C filed by the appellant-husband
tagged along with Domestic Violence case,⁠
(iv) Execution Petition Ex.No.06/2018, pending at the stage of
prosecution evidence
(v) Revision petition Rev.P.1069/2018
(vi) Petition u/S 482 filed by Respondent-wife (Crl.M.C. 48/2018)
(vii) Petition u/S 482 filed by appellant-husband
(Crl.M.C.6582/2019)
(viii) Contempt Proceedings Misc. No. 6/2019
(ix) Petition u/S 25 of the Guardianship Act being GP. No.
103/2017 (Disposed of)
(x) Petition u/S 9 seeking restitution of Conjugal Rights (HMA
Petition No. 1416/2017)
(xi) Petition U/S 13 1)(ia) (HMA Petition No. 1417/2017)
41. There is no doubt that prolonged litigations between the spouses,
undermines the potential for amicable resolution, exacerbates animosity, and
impedes the parties’ ability to move forward constructively. This extended
legal battle has inflicted significant emotional, psychological, and financial
strain on both parties, thereby perpetuating a hostile and contentious
environment. Consequently, the persistent engagement in litigation over an

MAT.APP.(F.C.) 33/2022 Page 13 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 extended period can be viewed as a form of cruelty, spanning over a decade,
can be construed as cruelty.
42. In the case of Kahkashan Kausar Vs. State of Bihar, (2022) 6 SCC
599, it was stressed that prolonged legal battles can harm both parties,
similar to cruelty.
43. In the light of afore-noted narrations of facts of the present case, this
Court is of the opinion that respondent's admission to sending a message
containing derogatory language towards the appellant's father and filing of
complaints with his employer-RBI, can be considered as cruelty. Such
incidents create an atmosphere of tension and instability within the marital
relationship, causing emotional harm to both parties involved.
44. The respondent's conduct leads to the inevitable conclusion that her
behaviour was such which has caused serious concern in the mind of the
appellant, disturbing his mental peace. While these incidents may seem
trivial when viewed individually, however, with cumulative effect over
time, create significant mental stress, making it untenable for the parties to
sustain their marital relationship, as has been held in the case of Gurbux
Singh Vs. Harminder Kaur, (2010) 14 SCC 301.
45. It is also relevant to note here that after the appellant preferred the
petition under Section 13 (1) (ia) of the Act seeking divorce from
respondent-wife on 01.02.2012 before the learned Family Court, the
respondent-wife preferred petition under Section 9 of the Act much later on
24.08.2013, however, chose not even to conclude her cross-examination to
substantiate her claims. In view of the fact that parties were already
litigating multiple cases against each other, the respondent filed petition

MAT.APP.(F.C.) 33/2022 Page 14 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 under Section 9 of the Act, just as an eye wash to pretend she was willing to
live with appellant. It is not in dispute that the parties have been living
separately since 06.09.2011. During pendency of the present appeal, vide
order dated 07.12.2022, parties were referred to Samadhan (Delhi High
Court Mediation & Conciliation Centre) and multiple mediation sessions
were conducted. Despite extensive discussions, no settlement could be
reached.
46. After carefully analysing the impugned judgment and the evidence on
record, we firmly conclude that the respondent by absenting herself for
cross-examination has willingly opted to not substantiate her allegations
against the appellant. By making false allegations of adultery, making
complaints to his employer, passing derogatory comments against his father
and filing multiple litigations against him, she has committed mental cruelty
upon the appellant within the ambit of Section 13 (1) (ia) of the Hindu
Marriage Act. The respondent has lived for a short span of less than even
one year with the appellant and has deliberately chosen to stay away with
his parents and son of the parties, thereby depriving the appellant of marital
bliss and fatherhood.

47. The Hon’ble Supreme Court in Samar Ghosh Vs. Jaya Ghosh (2007)
4 SCC 511, has held that: -

“Where there has been a long period of continuous

separation, 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 serve 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
MAT.APP.(F.C.) 33/2022 Page 15 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01
 the emotions of parties. In such like situations, it
may lead to mental cruelty.”

48. Furthermore, by filing petition under Section 9 of the Act, and then
not pursuing it, she has made deliberate attempt to delay the divorce
proceedings, causing further harassment to the appellant.
49. In light of the above, it is abundantly clear that the respondent's
conduct towards the appellant amounted to cruelty.
50. Consequently, the judgment dated 18.12.2021 passed by the learned
Family Court is partly set aside to the effect it dismisses the petition under
Section 13 (1) (ia) of the Hindu Marriage Act, 1955 filed by the appellant.
51. The present appeal is accordingly allowed and the appellant is granted
divorce under Sections 13(1)(ia) of the Hindu Marriage Act, 1955.
52. Decree sheet be drawn accordingly.

(SURESH KUMAR KAIT)

JUDGE

(NEENA BANSAL KRISHNA)

JUDGE
APRIL 02, 2024
rani/r

MAT.APP.(F.C.) 33/2022 Page 16 of 16

Signature Not Verified

Digitally Signed
By:ROHIT KUMAR
Signing Date:02.04.2024
16:01