False allegations of illicit relations with Bhabhi is cruelty: Delhi HC 2018

% Decided on: 23.02.2018
+ MAT.APP.(F.C.) 2/2018, CM Nos. 64/2018 (stay), 65/2018 (Exemption)
and CM No. 66/2018 (Condonation of delay in filing the appeal)
S. ….. Appellant
Through: Mr Imran Ali and Mr Johar Adeeb,
M.K. ….. Respondent
Through: None.
1. The present appeal has been filed under Section 19 of the
Family Courts Act, 1984, impugning the judgment dated 31.10.2017,
whereby the marriage between the parties was dissolved on the
ground of cruelty being committed by the appellant/wife.
2. The admitted facts of the case are that the marriage between the
appellant/wife and the respondent/husband was solemnized on
11.07.2008 at Delhi according to Hindu rites and ceremonies. After
consummation of the marriage, a male child, namely, Samesth was
born out of the wedlock on 10.03.2010.
3. The petition for divorce on the ground of cruelty was filed by
the husband against the wife. His contentions were that her behaviour
MA. APP.(F.C.) 2/2018 Page 2
was cruel, she never paid attention to the household chores and
refused to perform any work; that she also used to pick up quarrels
with him and his mother and sister-in-law (Bhabhi) although she was
always treated with love and affection by them and his brother. She
wanted him to turn out his family members from the house on the
ground that the house belonged to her husband. He had also contended
that she had threatened to commit suicide and used to go to her
parental home without informing him; that she always used to say that
“mai tumahri naukrani nahi hoon”; that she had also abused him and
his family members with filthy language and also used to threaten him
and his family members to implicate them in a false dowry case.
4. He further contended that she was in the habit of picking up
quarrel without any rhyme and reason and on 15.09.2009, she
quarreled with him and when he tried to pacify her, she threatened to
commit suicide also threatening that she had already written a suicide
note in which she had implicated him and his family members, as
persons responsible for her suicide. He has averred that on
25.04.2010, in the birthday party of their child, despite the invitation
extended to the family of the wife, only her brothers, namely, Tarun
MA. APP.(F.C.) 2/2018 Page 3
and Pramod attended the birthday party and even in their presence,
she had quarreled with him and threatened to teach a lesson to him
and his family members. In its petition, the husband contended that he
wanted to go on spiritual tour to Madhya Pradesh on 14.07.2010, but
she created a scene and did not allow him to go and threatened to
divorce him if he dares to go. On 15.10.2010, when his mother and
Bhabhi had gone to attend a Jagran, she quarreled and manhandled
him and he had to call the PCR at 11.15 PM. The Police reached at the
house and even in their presence, she threatened to get a false dowry
case registered against him and his family members. She went to her
parental home and on 06.11.2010 when she wanted to return to
matrimonial home, she called him asking to take her back to the
matrimonial home from her parental home; and she refused to
consider his request to ask her brother to drop her. Upon this, she got
furious and levelled false allegations of theft on his mother and
brother and claiming that they had removed certain articles from her
house. She had again picked up quarrel on 02.01.2011 on a small
issue of taking care of the child and locked herself in a room and
threatened to commit suicide. When despite repeated requests, she
MA. APP.(F.C.) 2/2018 Page 4
refused to open the door, he called the Police. It was Police, who got
the door opened and took them to Police Station. Thereafter, from that
day, i.e., 02.01.2011, she started residing in a separate room and
refused to perform the marital obligations. The husband, on these
contentions, had sought divorce on the ground of cruelty.
5. In the written statement, the appellant/wife has denied all the
averments in the petition for divorce. She had alleged that she was not
treated with love and affection and abuses were hurled on her for no
reason. She had also averred that petitioner had illicit relations. She
had further contended that the husband and his family members had
treated her badly and tried to get excuses for their illicit relations and
misdeeds. Since she had objected to her husband’s illicit relationship
with his Bhabhi they had all joined hands to get rid of her. She
averred that she is a well-educated lady, knows her dignity, selfrespect
and is also aware of her duties towards her husband and family
members, but she was treated as a maid servant. She had denied that
she often threatened to commit suicide or file false cases against the
husband or his family members. She has specifically denied the
incident of 20.04.2009, 15.09.2009 and 25.04.2010. She had further
MA. APP.(F.C.) 2/2018 Page 5
averred that on 15.10.2010, it was she who had called the Police and
the Police had settled the matter by counseling the husband and
advising him to take care of his wife and minor son instead of taking
side of Bhabhi and elder brother, etc. She contends that it was on that
day that she came to know for the first time about the illicit relations
of her husband with his Bhabhi.
6. On these pleadings of the parties, on 03.08.2011, the learned
Family Judge had framed the following issues:-
“1. Whether the respondent after the solemnization of
marriage has treated the petitioner with cruelty? OPP
2. Relief.”
7. The record shows that the husband has examined himself as
PW-1 and exhibited marriage card as Ex.PW-1/1; photographs of
marriage as EX.PW-1/2-4 (colly); copy of complaint made by him to
SHO PS R.K. Puram as Ex.PW-1/5; copy of complaint dated
29.10.2010 as Ex.PW-1/6; copy of newspaper publication as Ex.PW1/7;
copy of complaint dated 24.02.2011 as Ex.PW-1/8; copy of
complaint dated 16.06.2011 as Ex.PW-1/9.
8. The appellant/wife also examined herself as RW-1 and proved
on record the marriage photographs, marriage card and copy of birth
MA. APP.(F.C.) 2/2018 Page 6
certificate of minor son as Ex.RW-1/1, RW-1/2 and RW-1/3, list of
dowry articles/stridhan as Ex.RW-1/4 (colly); copy of R.C. of car and
photograph as Ex.RW-1/5 (colly); copy of pension book of
respondent’s mother as Ex.RW-1/6; leave record of respondent as
Ex.RW-1/7; copy of RTI reply dated 03.06.2014 along with pay slip
of April, 2014 and medical leave as Ex.RW-1/8 (colly); photographs
of respondent’s brother in-laws’ marriage as Ex.RW-1/9 (colly); copy
of complaint dated 23.03.2011 as Ex.RW-1/11 (colly); original bills
pertaining to maintenance of car, BSES bill, Delhi Jal Board, school
fee bills etc. as Ex.RW-1/12; medical bills during 2011-2012 is
Ex.RW-1/13 (colly). She had also examined in support of her case,
her uncle Shri Om Prakash as RW-2.
9. After examining the evidences on record, the Family Court, on
the basis of evidences on record, concluded that the husband has
successfully proved the incident of 02.01.2011. The relevant
paragraphs are reproduced as under:-
“42. The petitioner has also pleaded and deposed that
on 02.01.2011, respondent bolted herself inside the
room and threatened the petitioner to commit suicide.
The respondent did not open the room despite the
requests of the petitioner, due to which police was
called and police got opened the door.
MA. APP.(F.C.) 2/2018 Page 7
44. The respondent has thus not disputed that she tried
to commit suicide by handing herself with her chunni
on 15.09.2009 and threatened the petitioner to
implicate him. She has also not disputed that she
bolted herself in the room on 02.01.2011 and
threatened the petitioner to commit suicide. The
petitioner has thus duly proved on record these facts
against the respondent.”
10. As regards the other contentions of the husband that on
15.10.2010, an altercation had occurred between him and the
appellant in the absence of his mother and brother, during which she
had also manhandled him and the Police was called and the wife
threatened for getting false case registered against him, the learned
Family Judge has held as under:-
“46. The petitioner has reiterated the said plea in
para 18 of his examination in chief. The respondent
has thoroughly cross-examined the petitioner but his
testimony regarding above plea has remained
uncontroverted. The respondent has not carried out
any cross-examination of PW-1 in this aspect. In the
absence of any cross-examination, the respondent has
deemed to have admitted the above plea.”
11. The learned Family Judge also held as under:-
“47. The petitioner has also made various
specific allegations of cruelty against the respondent in
his petition. He also reiterated these allegations in his
deposition. The respondent has extensively crossexamined
and petitioner but his testimony has
MA. APP.(F.C.) 2/2018 Page 8
remained unhampered and petitioner has successfully
passed the acid test of cross-examination”.
12. The learned Family Judge has also observed that the wife had
taken the plea in her written statement that the husband and his family
members were trying to get “excuses for their illicit relations and
deeds and misdeeds” and had also noted the averments of the wife in
para 4c of the written statement to the effect that they had connived
with each other to get rid of the wife “who is objecting to illicit
relations of the petitioner with his Bhabhi ” and also her averment that
“no wife shall ever allow her husband be shared by anyone else
physically, socially and financially.” The Family Judge has also noted
the averments made in para 4n of the written statement made by the
appellant that on 15.10.2010, when the Police amicably settled the
matter, she came to know that “it was the first day when the
respondent came to know about the illicit relations of the petitioner
with his Bhabhi”. The learned Family Judge has observed that despite
making such serious allegations in the written statement, the wife has
not led any evidence to prove these allegations. The learned Family
Judge has held as under:-
“53. The respondent though levelled these serious
allegation against petitioner in her written statement.
MA. APP.(F.C.) 2/2018 Page 9
But the respondent has not made even a whisper of
above allegations in her deposition. The above
allegations levelled by the respondent regarding the
illicit relations of petitioner and his sister-in-law
(Bhabhi) in WS has not been substantiated by her as
she has not made a single averment in her deposition
in this regard nor she has led any other evidence to
substantiate the said allegation.”
13. Thereafter, relying on the findings of Vijaykumar Ramchandra
Bhate vs. Neela Vijaykumar Bhate AIR 2003 SC 2462, the learned
Family Judge has held that such reckless and bald allegations without
any cogent proof, itself amounts to gravest form of mental cruelty and
held that the husband has succeeded in proving that the wife had
committed cruelty upon him of such a nature which endangers his life
and it was not possible for him to continue to live in the relationship
and thereby dissolved their marriage.
14. The wife has impugned the said judgment on several grounds.
It is argued that the learned Family Judge has erred in appreciating the
evidence that the petition filed by the respondent/husband was based
on false and concocted facts; that the learned Family Judge has failed
to appreciate the evidences correctly and also failed to keep in mind
that there is a seven year old son and the respondent cannot run away
from his responsibility of a father. The appellant has further stated that
MA. APP.(F.C.) 2/2018 Page 10
she is a housewife and has no means to maintain her. It is further
contended that the impugned order is bad in law because the burden to
prove the cruelty was upon the respondent which he had failed to
discharge. On these contentions, it is submitted that the impugned
order be set aside.
15. We have given thoughtful consideration to the contentions of
the parties.
16. The respondent had filed the petition for divorce under Section
13(1)(ia) of Hindu Marriage Act, 1955 (hereinafter referred to as the
‘said Act’ on the ground of cruelty. In the said Act, the expression
‘cruelty’ is not defined. However, the expression of ‘cruelty’ vis-à-vis
the matrimonial obligations and duties has been elaborately discussed
and defined.
17. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, the
Supreme Court has held that the expression “treated the petitioner
with cruelty” as used in Section 13(1)(ia) of the said Act is used in
relation to human conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and obligations. The
Supreme Court had further observed that “cruelty may be mental or
MA. APP.(F.C.) 2/2018 Page 11
physical, intentional or unintentional.” It is not difficult to determine
the physical cruelty. However, the determination of mental cruelty
poses a difficulty. The Court observed as under:-
“4. …If it is mental the problem presents difficulty. First,
the enquiry must begin as to the nature of the cruel
treatment. Second, the impact of such treatment on the
mind of the spouse. Whether it caused reasonable
apprehension that it would be harmful or injurious to live
with the other. Ultimately, it is a matter of inference to be
drawn by taking into account the nature of the conduct
and its effect on the complaining spouse….”
18. The Court also observed as under:-
“5. ..The cruelty alleged may largely depend upon the
type of life the parties are accustomed to or their
economic and social conditions. It may also depend upon
their culture and human values to which they attach
importance. We, the judges and lawyers, therefore,
should not import our own notions of life. We may not go
in parallel with them. There may be a generation gap
between us and the parties…”
19. In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 , the Apex Court
has held that mental cruelty is result of “conducts which inflicts upon
the other party such mental pain and suffering as would make it not
possible for that party to live with the other.” The Court had further
observed as under:-
“16. ….In other words, mental cruelty must be of such a
nature that the parties cannot reasonably be expected to
live together. The situation must be such that the wronged
MA. APP.(F.C.) 2/2018 Page 12
party cannot reasonably be asked to put up with such
conduct and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to
cause injury to the health of the petitioner. While arriving
at such conclusion, regard must be had to the social
status, educational level of the parties, the society they
move in, the possibility or otherwise of the parties ever
living together in case they are already living apart and
all other relevant facts and circumstances which it is
neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty in
another case. It is a matter to be determined in each case
having regard to the facts and circumstances of that case.
If it is a case of accusations and allegations, regard must
also be had to the context in which they were made.”
20. In Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706, the
Supreme Court in para 21 of the judgment has again reiterated that the
cruelty has to be ascertained from the behaviour of one spouse
towards the other and where the behaviour is of such a nature which
causes reasonable apprehension in the minds of the latter, about his or
her safety to continue in the relationship with the other, such a
behaviour constitutes cruelty. The Court further held that “mental
cruelty is a state of mind and feeling with one of the spouses due to
the behaviour or behavioural pattern by the other.” The Court has
further observed that “it is necessarily a matter of inference to be
drawn from the facts and circumstances of the case. A feeling of
anguish, disappointment and frustration in one spouse caused by the
MA. APP.(F.C.) 2/2018 Page 13
conduct of the other can only be appreciated on assessing the
attending facts and circumstances in which the two partners of
matrimonial life have been living. The inference has to be drawn from
the attending facts and circumstances taken cumulatively. In case of
mental cruelty it will not be a correct approach to take an instance of
misbehaviour in isolation and then pose the question whether such
behaviour is sufficient by itself to cause mental cruelty. The approach
should be to take the cumulative effect of the facts and circumstances
emerging from the evidence on record and then draw a fair inference
whether the petitioner in the divorce petition has been subjected to
mental cruelty due to conduct of the other.”
21. In another case tilted as Savitri Pandey v. Prem Chandra
Pandey, (2002) 2 SCC 73, the Apex Court in para 6 of the judgment
has observed that normal wear and tear of the family life does not
constitute cruelty. The Court further held that “it cannot be decided
on the basis of the sensitivity of the petitioner and has to be adjudged
on the basis of the course of conduct which would, in general, be
dangerous for a spouse to live with the other.”
MA. APP.(F.C.) 2/2018 Page 14
22. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Apex
Court in para 10 has held that “legal cruelty has to be found out, not
merely as a matter of fact, but as the effect on the mind of the
complainant spouse because of the acts or omissions of the other.
Cruelty may be physical or corporeal or may be mental. In physical
cruelty, there can be tangible and direct evidence, but in the case of
mental cruelty there may not at the same time be direct evidence. In
cases where there is no direct evidence, courts are required to probe
into the mental process and mental effect of incidents that are brought
out in evidence. It is in this view that one has to consider the evidence
in matrimonial disputes.
(emphasis supplied)
23. The Court has further held that to constitute cruelty, the
conduct complained of should be of „grave and weighty‟ and
something more than “ordinary wear and tear of married life”. The
Apex Court in A. Jayachandra (supra), also observed in para 12 that
“mental cruelty may consist of verbal abuses and insults by using
filthy and abusive language leading to constant disturbance of mental
peace of the other party.”
MA. APP.(F.C.) 2/2018 Page 15
24. It is also settled law that while appreciating the evidences in
these matters, it is the totality of the circumstances which are to be
considered. The contemporaneous nature of evidences is important.
The Family Court had arrived at the conclusion that the husband has
succeeded in proving the facts that the appellant was abusive and was
in the habit of picking up quarrel frequently and has also threatened to
commit suicide and has implicated the husband and his family
members in the suicide note. From her behaviour that she had bolted
herself in a room and did not open the door of the room and then
threatened to commit suicide also stands proved. The
contemporaneous evidences which are in the form of complaints filed
by the husband with the Police against such behaviour of the wife also
support his case. The fact that the Police had visited the matrimonial
house of the appellant on such complaints by her husband also stands
proved on record. It is also noteworthy that while the husband had
made complaints against her behaviour with the Police, the wife has
not made any complaint during her stay with the respondent and his
family members. The only complaint which she allegedly made is
dated 23.03.2011, which has been apparently made after the
MA. APP.(F.C.) 2/2018 Page 16
institution of the petition for divorce by the husband which was
instituted on 02.02.2011. The said complaint seems to be a counter
blast. Her contemporaneous conduct, as complained by the
respondent, also gets validation by the fact that in her written
statement, she had made allegations not only against her husband, but
also against entire family of her husband by stating that they all were
indulging into illicit relations. She has clearly averred in her written
statement in para 4b that they tried to get excuses for their illicit
relations and deeds and misdeeds. Again in para 4c of her written
statement, she had averred that the petitioner, i.e., the respondent and
his family members connived with each other to get rid of the
respondent, since she had objected to his illicit relations with his
Bhabhi. She had again in para 4n of her written statement, alleged that
on 15.10.2010, she came to know about the illicit relations of the
respondent/husband with his Bhabhi. The learned counsel for the
appellant has failed to point out any evidence produced by the
appellant on record to substantiate these allegations. The learned
Family Court has observed in the impugned judgment that “these are
unsubstantiated charges and are bald allegations which has been
MA. APP.(F.C.) 2/2018 Page 17
made recklessly”. Such allegations about having illicit relations with
Bhabhi certainly fall within the category of grave and weighty cruelty.
These unsubstantiated allegations are of the nature to cause mental
suffering to a person against whom such allegations are levelled. The
appellant has not only levelled such bald allegations against her
husband, but also against her sister-in-law (wife of elder brother of the
respondent) and thereby maligning her reputation as well. She has in
fact indulged into an act of character assassination of her husband and
his Bhabhi.
25. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar
Bhate, (2003) 6 SCC 334, the Supreme Court has clearly held as
“7. …..The position of law in this regard has come to
be well settled and declared that levelling disgusting
accusations of unchastity and indecent familiarity with
a person outside wedlock and allegations of
extramarital relationship is a grave assault on the
character, honour, reputation, status as well as the
health of the wife….”
26. Again in Vishwanath Agrawal v. Sarla Vishwanath Agrawal,
(2012) 7 SCC 288, the Apex Court has held as under:-
“46…..Thus, we have no scintilla of doubt that the
uncalled-for allegations are bound to create mental
agony and anguish in the mind of the husband….”
MA. APP.(F.C.) 2/2018 Page 18
27. In a recent judgment in Narendra v. K. Meena, (2016) 9 SCC
455, the Supreme Court has held as under:-
“16. ….Except for the baseless and reckless
allegations, there is not even the slightest evidence that
would suggest that there was something like an affair
of the appellant with the maid named by the
respondent. We consider levelling of absolutely false
allegations and that too, with regard to an extramarital
life to be quite serious and that can surely be a
cause for mental cruelty….”
28. We find that leveling of false allegations of illicit relations of
such nature and magnitude causes mental pain, agony and suffering to
the husband. Such allegations causes profound and lasting disruptions
in the relationships and also causes deep hurt and reasonable
apprehension that it would be dangerous to live with a wife, especially
when she is also threatening to commit suicide.
29. The Supreme Court in Narendra (supra) has clearly stated as
“11…..No husband would ever be comfortable with or
tolerate such an act by his wife and if the wife succeeds
in committing suicide, then one can imagine how a
poor husband would get entangled into the clutches of
law, which would virtually ruin his sanity, peace of
mind, career and probably his entire life. The mere
idea with regard to facing legal consequences would
put a husband under tremendous stress. The thought
itself is distressing. Such a mental cruelty could not
have been taken lightly by the High Court. In our
MA. APP.(F.C.) 2/2018 Page 19
opinion, only this one event was sufficient for the
appellant husband to get a decree of divorce on the
ground of cruelty. It is needless to add that such
threats or acts constitute cruelty. Our aforesaid view is
fortified by a decision of this Court in Pankaj
Mahajan v. Dimple, (2011) 12 SCC 1 wherein it has
been held that giving repeated threats to commit
suicide amounts to cruelty.”
30. We are of the opinion that conclusion of the learned Family
Judge that the appellant had treated her husband with cruelty, cannot
be faulted. We find no infirmity and illegality in the impugned
31. For the reasons stated hereinabove, the present appeal fails and
is dismissed along with the pending applications, with no order as to
FEBRUARY 23, 2018