* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 18th August, 2023

% Pronounced on: 05th September, 2023

+ MAT.APP.(F.C.) 12/2021 & CM APPL. 2746/2021

MAMTA .... Appellant

Through: Ms.Renu Gupta and Ms.Pratiksha
Jalan, Advocates.

Versus

PRADEEP KUMAR .... Respondent

Through: Ms.Meera Kaura Patel and
Mr.Saket, Advocates.

CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J

1. The appellant/wife has filed the present appeal against the

Judgment dated 25.02.2020 vide which the Divorce Petition filed by the
respondent/husband (petitioner in the divorce petition) has been allowed
on the ground of „cruelty‟ under Section 13(1) (ia) of the Hindu Marriage
Act, 1955 (hereinafter referred to as ‘the Act, 1955’).
2. The facts in brief are that the appellant got married to the
respondent according to the Hindu Rites and Customs on 30.04.2006 and
one son namely master Ashwin Kumar was born from the said wedlock on
18.01.2007. The respondent/husband had claimed that the appellant was

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 aggressive, quarrelsome and violent in nature towards him and his family
members. She used to frequently leave the matrimonial home without
informing him or the family members and whenever they sought an
explanation, she used to quarrel. On 09.08.2008, one Sh. Om Prakash, a
close relative of the respondent/husband had come to their house where
the appellant misbehaved with the relative. She did so with the other
relatives who used to visit their house. It was further claimed that the
appellant/wife did not mend her ways despite repeated requests and
remained adamant and refused to do household work. She went to her
parental home after quarrelling with the respondent on 08.12.2008. In the
morning of 09.12.2008, the parents and the brother of the appellant along
with three other unknown persons came to the house of the respondent
and took away her jewellery and other valuable articles after manhandling
the respondent and his family members for which they made a complaint
to the police vide DD No. 42B dated 09.12.2008 at PS Palam Village and
thereafter vide DD No. 47 dated 09.12.2008, however, ASI Mohinder
Singh forced them to compromise the matter and obtained their signatures
forcibly. Again, a written complaint regarding this incident was given by
the respondent to the police on 23.12.2008 and 27.04.2010. He also
received medical treatment at Safdarjung Hospital vide MLC No. 242161
dated 09.12.2008.
3. In retaliation, the appellant filed a complaint in CAW Cell against
the respondent and his family members but subsequently withdrew the
same. She thereafter, filed a complaint case under the Protection of
Women from Domestic Violence Act, 2005 (hereinafter referred to as
‘D.V. Act’) on 16.11.2010 before the MM, Saket Court, which also was

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 withdrawn by her on 23.05.2011. Additionally, the appellant filed a
petition under Section 125 CrPC wherein the respondent has been directed
to pay Rs.3000/- per month as interim which he has been regularly paying
and the said petition is still pending trial. Thereafter, the
respondent/husband filed a complaint under Section 156(3) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’) against the
appellant/wife and her family members but the same was withdrawn on
27.06.2011 following a compromise between the parties.
4. Again, a complaint in CAW Cell was filed by the appellant/wife
thus, the respondent was constrained to seek divorce by way of the
Divorce petition on the ground of ‘cruelty’.
5. The appellant wife contested the Divorce petition by asserting
that she was harassed on account of dowry and was given merciless
beatings. On 08.12.2008, the appellant was thrown out of the matrimonial
house and since then she has been living at the mercy of her parents. She
lodged a complaint against the respondent/husband at PS Palam village on
16.12.2008 and also at CAW Cell, Sriniwas Puri on 09.04.2010. She
withdrew her D.V. Petition on 23.05.2011 following a compromise with
the respondent. It was claimed that the divorce petition was frivolous and
the decree granted is liable to be rejected.
6. The parties examined themselves in support of their respective
assertion. The learned Principal Judge, Family Court observed that the
parties admittedly are residing separately since 08.12.2008 pursuant to a
quarrel which is reflected in DD No. 42B dated 09.12.2008 and even the
MLC of the respondent husband was prepared at Safdarjung Hospital.
Furthermore, the appellant had again filed a complaint in CAW Cell and

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 also FIR no. 01/2016 under Section 498A/406/34 of the Indian Penal
Code, 1860 (hereinafter referred to as ‘IPC’) was registered against the
respondent and his family members. The learned Judge, Family Court
observed that though as per the testimony of the respondent/petitioner,
their marriage was very good in the beginning, but he has proved various
incidents in his testimony which clearly reflect that he was subjected to
cruelty by the appellant/wife. It was also observed by the Learned Judge,
Family Court that no adverse inference can be drawn against the
respondent/husband and his family members merely because of
registration of case under Section 498A IPC. It was also observed that the
entire facts have to be seen as a whole and each incident cannot be
considered separately. There was sustained cruelty committed by the
appellant/wife upon the respondent/husband over a period of time and
thus, it was concluded that the respondent was entitled to divorce under
Section 13 (1) (ia) of the Act, 1955 on the ground of „cruelty‟, the petition
was accordingly allowed.
7. Aggrieved by the said judgment, the appellant/wife has filed the
present Appeal.
8. The main grounds agitated in the present Appeal are that it is
appellant who was subjected to cruelty by the respondent as she was not
only harassed for dowry despite which she made all the efforts to settle
the disputes which proved futile, compelling her to get the FIR registered
under Section 498A/406/34 IPC against her husband and his family. It is
claimed that the registration of the FIR was not on account of any false
averments but on the basis of the cruelty committed by the respondent and
his family members upon her. It is further argued that she was willing

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 always to live peacefully with the respondent but it is the respondent who
is in fact guilty of cruelty and he cannot be allowed to make a premium of
his own wrong. It is therefore, stated that the decree of divorce is liable to
be set aside.
9. The respondent husband in his reply to the present Appeal has
stated that he has been a victim of both physical as well as mental cruelty.
The appellant on 04.07.2006 had beaten her mother-in-law Sarla Devi and
left the matrimonial home without informing anyone about her
whereabouts. Subsequent to the fight on 08.12.2008, numerous false
complaints were filed against him and his family by the appellant to
harass them. The Trial Court in FIR No. 01/2016 has framed the charge
only under Section 498A IPC and not under Section 406 IPC and the
matter is still pending.
10. Submissions heard.
11. The marriage is not simply a union between the two individuals but
is a social institution having legal, economic, cultural and religious
ramifications. Functionally, marriages are seen as an institution that
propagates of social and cultural capital as they help in identifying kinship
ties, regulating sexual behaviour and consolidating property and social
prestige as has been held in the case of Sivasankaran vs. Santhimeenal
2021 SCC OnLine SC 702.
12. Marriages under old Hindu Law are considered as a sacrament and
did not recognize the concept of divorce. Once this union of marriage was
established, the ties were for the entire life of the spouses which could not
be severed under any circumstances. Complete shift of paradigm from the
social ethos happened with the enactment of the Act, 1955 which not only

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 introduced the concept of ‘monogamy’ but also defined certain grounds
on which alone divorce could be granted. Despite this phenomenal change
in the social ethos, the Act, 1955 recognises the ground of divorce only on
“Fault Theory”. Unless the opposite party was shown to be at fault,
whether it was for ‘Adultery’, ‘Cruelty’, ‘Desertion’ or other grounds as
specified under Section 13 of the Act, 1955, no divorce can be granted.
With the passage of time, experience has shown that many a times, the
marriages do not work because of incompatibility and temperamental
differences, for which neither party can be blamed. However, since only
Fault Theory prevails, these parties end up warring with each other for
years to come only because they have no way of exiting this relationship.
While many debates have been held to introduce “Irretrievable
Breakdown of Marriage” as a ground, it has not met the approval and
consent of the legislation. We are bound by limits as defined under the
Act, 1955 and unless the fault of the other spouse is shown, the parties are
left to suffer acrimonious relationship with no way to exit. In this
backdrop, the facts of the present case may be considered.
13. In order to be successful in getting divorce, the appellant has to
establish circumstances which can be termed as ‘cruelty’ by the
respondent so as to dissolve the bond of marriage. Admittedly, the parties
got married on 30.04.2006 but barely after a little more than 2½ years,
they got separated on 08.12.2008. It has come in the evidence of the
parties that on the fateful day i.e. 08.12.2008, a fight took place between
the parties in which the respondent/husband suffered injuries and was
treated at Safdarjung Hospital vide MLC No. 242161 dated 09.12.2008.
The version of the appellant was that on the said date, she was thrown out

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 of the matrimonial home and since then, has been living at the mercy of
her parents. However, the incident of 08.12.2008 is not denied. The
testimony of the respondent/husband that the injuries were inflicted by the
appellant has also not been seriously repelled. While the sole incident of
fight may not be a ground as envisaged under Section 13(1)(ia) of the Act,
1955 but this one incident gives credibility to the testimony of the
respondent that the appellant used to frequently quarrelled and
misbehaved with the appellant and his relatives.
14. In this context, it is also pertinent to appreciate the testimony of the
respondent/husband that after the fight on 08.12.2008, her parents and
brother came to their house in the morning of next day i.e. 09.12.2008 and
took her away along with the jewellery and other valuable articles from
their house and also manhandled the respondent and his family members.
The respondent made a complaint to the police vide DD No. 42B dated
09.12.2008 at Police Station Palam Village and thereafter, vide another
DD No. 47 of the same date. He was compelled to compromise with the
appellant forcibly. However, a written complaint was again given by the
respondent/husband to the police about the same incident on 23.12.2008
and 27.04.2010. The testimony of the respondent shows that not
everything was fine in the matrimonial nest and that he was suffering
harassment at the hands of the appellant/wife.
15. It is not in dispute that a complaint in CAW Cell against the
respondent and his family members was filed by the appellant. The
respondent had claimed that the complaint was made in retaliation since it
was subsequently withdrawn. The appellant has neither been able to
sustain or prove the allegations made by her in the complaint made to

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 CAW Cell or explain the circumstances for its withdrawal.
16. The appellant has not denied that she also filed a complaint case
under D.V.Act on 16.11.2010 before the learned MM, Saket Courts which
also was withdrawn by her on 23.05.2011. Additionally, she has filed a
complaint in CAW Cell and also FIR No. 01/2016 under Sections
498A/406/34 IPC was registered against the respondent and his family
members. The filing of the criminal complaints or seeking a redressal
from the State machinery for a wrong committed upon an individual, can
never be questioned or looked at with suspicion. However, for this, the
onus was on the appellant to explain the reasons for making these
complaints and their subsequent withdrawals. Also, it was for the
appellant to prove the allegations of harassment and torture that were
evidently made by her in the two complaints to CAW Cell and ultimately
in the FIR.
17. It is significant to note that the parties were living separately since
08.12.2008. Apparently, the petition under D.V.Act was withdrawn by
the appellant on 23.05.2011 because of the settlement between the parties
in regard to which, a statement was made, copy of which is Mark P-1/R1.
Admittedly, both the parties did not comply with the said Settlement.
Moreover, the matter was again settled with the intervention of the
Counsellor in the proceedings under Section 125 CrPC on 24.12.2018,
wherein the parties agreed to have a separate residence but again the
settlement was not acted upon by both the parties. It is evident that the
differences had become so deeply entrenched between the parties and they
have drifted apart from where, they have no coming back from there. The
period of separation of 15 years has gone by and the difference between

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 them is irreconcilable.
18. The respondent in his testimony had deposed about the cruel acts of
the appellant in as much as she showed no respect to his family members
and had quarrels with the respondent which even resulted in the injuries to
the respondent. The complaints were filed time and again by the appellant
and even under Section 498A IPC. Though filing of a criminal complaint
per-se cannot be termed as an act of cruelty yet, at the same time, the
allegations of cruelty as made in the criminal case(s), should have been
substantiated in the divorce proceedings. No incident of cruelty towards
her by the respondent/husband has been proved.
19. In the case of K.Srinivas vs.K.Sunita X (2014) SLT 126, the
Supreme Court held that filing of the false complaint against the husband
and his family members also constitutes mental cruelty for the purpose of
Section 13(1)(ia) of the Act, 1955.
20. Similarly, it has been held by the Supreme Court in Mangayakarasi
vs. M.Yuvaraj (2020) 3 SCC 786 that it cannot be doubted that in an
appropriate case, the unsubstantiated allegation of dowry demands or such
other allegations, made the husband and his family members exposed to
criminal litigation. Ultimately, if it is found that such allegations were
unwarranted and without basis and if that act of the wife itself forms the
basis for the husband to allege the mental cruelty has been inflicted on
him, certainly, in such circumstance, if a petition for dissolution of
marriage is filed on that ground and evidence is tendered before the
original Court to allege mental cruelty, it could well be appreciated for the
purpose of dissolving the marriage on that ground.
21. Further, the Supreme Court in the case of Ravi Kumar vs. Julmidevi

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 (2010) 4 SCC 476 has categorically held that “reckless, false and
defamatory allegations against the husband and family members would
have an effect of lowering their reputation in the eyes of the society” and
it amounts to ‘cruelty’. Similar observations were made by the
Coordinate Bench of this Court in the case of Rita Vs. Jai Solanki (2017)
SCC OnLine Del 9078 and Nishi Vs. Jagdish Ram 233 (2016) DLT 50.
22. The appellant has not been able to justify the ground on which these
complaints were being made. As discussed in the judgments mentioned
above, repeated complaints with unexplained allegations to various
agencies cannot be termed as anything but cruelty.
23. The term „cruelty‟ as used in Section 13(1)(ia) of the Act, 1955
cannot be defined in given parameters and there cannot be a
comprehensive definition of „cruelty‟ within which all kinds of cases of
cruelty can be covered and each case has to be considered depending upon
its own unique factual circumstances. In Gurbux Singh vs. Harminder
Kaur, (2010) 14 SCC 301, the Hon’ble Apex Court observed that the
matrimonial life should be assessed as a whole and a few isolated
incidents over a period of time will not amount to cruelty. It was held as
under: -
“The ill-conduct must be precedent for a fairly lengthy
period where the relationship has deteriorated to an extent
that because of the acts and behaviour of a spouse, one
party finds it extremely difficult to live with the other party
no longer may amount to mental cruelty.
Making certain statements on the spur of the moment and
expressing certain displeasure about the behaviour of elders
may not be characterized as cruelty. Mere trivial irritations,
quarrels, normal wear and tear of married life which
happens in a day-to-day life in all families would not be

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 adequate for grant of divorce on the ground of cruelty”.

24. Similarly, in Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511, the
Apex Court held as under:-
“101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate some
instances of human behaviour which may be relevant in
dealing with the cases of “mental cruelty”. The instances
indicated in the succeeding paragraphs are only illustrative
and not exhaustive:
(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as would not
make possible for the parties to live with each other could
come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly clear
that situation is such that the wronged party cannot
reasonably be asked to put up with such conduct and
continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of manner,
indifference and neglect may reach such a degree that it
makes the married life for the other spouse absolutely
intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep
anguish, disappointment, frustration in one spouse caused
by the conduct of other for a long time may lead to mental
cruelty.
(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of
one spouse actually affecting physical and mental health of
the other spouse. The treatment complained of and the
resultant danger or apprehension must be very grave,
substantial and weighty.

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 (vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty”.

25. We find that in the present case as well, though the disputes
emanating from disrespect to respondent and his family members,
frequent quarrels resulting in various complaints may individually seen
innocuous and day to day quibbles, but when they persist over a long
period of time, it results in mental agony for which there is no solution.
Such prolonged differences made the life of respondent bereft of peace
and conjugal relationship which is the bedrock of any matrimonial
relationship. Thus, as observed in above judgments, it is evident that this
matrimonial relationship rest only on irritations and daily fighting and it
can be held that this conduct of appellant became a source of cruelty
towards the respondent.
26. Furthermore, both the spouses have been living separately since
08.12.2008 i.e. a period of almost 15 years. It has been already noted time
and again in the judgments of the Supreme Court that continuous
separation between the parties for a long period itself is a ground for
divorce.
27. In one of the momentous decisions, the Apex Court in the case of
Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558 has held that once the
parties have separated and the separation has continued for a sufficient
length of time and one of them has presented a petition for divorce, it can
well be presumed that the marriage has broken down.
28. The Apex Court in the case of Samar Ghosh (supra) laid down

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 certain guidelines with respect to Section 13(1)(ia) of the Act, 1955 and it
has been held that in a marriage 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 sever that tie, the law in such cases, does not
serve the sanctity of marriage. On the contrary, it shows scant regard for
the feelings and emotions of the parties and can be termed as mental
cruelty.
29. In a recent judgment in Rakesh Raman Vs. Kavita (2023) SCC
Online SC 497, the Apex Court again reiterated as under: -

“20…..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 sever that tie,
the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the
feelings and emotions of the parties. In such like situations, it
may lead to mental cruelty”.

30. We conclude that in the present case the parties are living
separately for 15 years now; there is no chance of reconciliation between
the parties and such long separation peppered which false allegations,
police reports and criminal trial has become a source of mental cruelty
and any insistence either to continue this relationship or modifying the
Family Court’s order would only be inflicting further cruelty upon both
the parties. Living together in a marriage is not an irreversible act. But
marriage is a tie between two parties and if this tie is not working under
any circumstances, we see no purpose in postponing the inevitability of

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 the situation.
31. We find no merit in the present Appeal and the same is hereby
dismissed along with pending applications, if any.

(NEENA BANSAL KRISHNA)

JUDGE

(SURESH KUMAR KAIT)

JUDGE

SEPTEMBER 05, 2023

akb

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