IN THE FAMILY COURT : PATIALA HOUSE COURT COMPLEX
NEW DELHI
HMA. No. 181/2023
IN THE MATTER OF:-
S.J
………….. Petitioner
VERSUS
S.G
………… Respondent
Date of Institution : 04.06.2016
Date of receiving in this Court : 15.02.2023
Date of Conclusion of Argument : 01.09.2023
Date of Judgment : 03.10.2023
PETITION U/S 13(1)(i-a) OF THE HINDU MARRIAGE ACT-1955 READ WITH SECTION 7 OF THE FAMILY COURT ACT,
Appearance
Sh. Varun Sharma, Ld. Counsel for the petitioner.
Sh. Prashant Mendiratta & Aditi Chaudhary, Ld. Cls. for respondent.
JUDGEMENT
1. This judgement shall dispose of petition under 13(1)(a) of the Hindu Marriage Act, 1955 filed by the petitioner/husband against the respondent/wife and a petition (filed as miscellaneous application in the proceedings under Section 13(1)(ia)of the HMA) under Section 12, 18, 19, 20, 22 & 23 of the Protection of Women from Domestic Violence Act, 2005 filed by respondent/wife against her husband/petitioner and her in laws comprising parents-in-law and brother-in-law and co-sister-in-law (jethani/wife of petitioner’s brother).
2. For the sake of clarity it is stated that in this judgement mother, father, brother of petitioner and petitioner’s brother’s wife have been referred to according to the relation they are related to the petitioner/husband even though they have been referred to as respondent No.2 to 5 in the petition/application under PWDV Act, by the respondent/wife calling herself as petitioner and husband, his mother, father etc. as respondents.
3. Undisputed fact of this case is that marriage between the petitioner/husband and respondent/wife was solemnized on 08.03.2011 as per Hindu rites and ceremonies at Vaishali, Ghaziabad, UP. Parties are Hindu as per HMA till date by religion. Their marriage has been duly registered with the concerned Registrar, in Mumbai. They were blessed with one baby girl Aahana on 18.06.2014 who is currently in the care and custody of the respondent/wife and studying in Shiv Nadar School, Gurugram.
4. Before marriage petitioner/husband and respondent/wife both were working with Axis Bank. Petitioner was working as Assistant Vice President in Mumbai and the respondent was employed as Manager in Delhi. At present petitioner is working in Square Yards in Gurugram and respondent/wife is working in CITI Bank N.A. Gurugram/Delhi. After marriage, parties to the marriage went to New Zealand for Honeymoon from 11.03.2011 to 23.03.2011, thereafter respondent/wife got herself transferred to Mumbai and started living together with husband in a rented accommodation w.e.f. 30.03.2011. Later in Mumbai, they both decided to purchase their own home and settle in Mumbai and accordingly, they purchased flat(s) bearing Nos. 1901 & 1902 in Tower A, Cosmic Heights Apartments, Bhakti Park, Wadala (East) Mumbai in joint names on loan. There is also a dispute with respect to this residential unit as to whether this is one flat or two flats joined together.
5. Even before the birth of the child Aahana, difference/discord started simmering between the parties and when difference/discord graduated to serious dispute going beyond their respective tolerance parties started approaching authorities established under the law for redressal of their respective grievance against other. Respondent was the first to approach police in April 2016 but not in Mumbai rather in Narwana, Jind, Haryana through her maternal Uncle leading to registration of FIR there in Narwana, Jind. Needless to say, allegations made in complaint/plaint/petition made by one was denied by other. Petitioner/husband realising that it was not possible to live together filed present petition under Section 13(1)(i-a) of the HMA on 04.05.2016 before the Family Court at Bandra, Mumbai. Upon service of notice of the said petition respondent/wife beside contesting the petition for divorce also filed a petition/application as a miscellaneous application under Section 12, 18, 19, 20, 22 & 23 of the PWDV Act, 2005.
6. Various miscellaneous applications came to be filed by the parties and Family Court at Bandra kept on adjudicating them and some of the adjudications were challenged upto Hon’ble Supreme Court. Subsequently, vide order dt. 08.09.2022 Hon’ble Supreme Court was pleased to transfer the present divorce petition to the Family Court at Patiala House, New Delhi with direction to dispose of the same preferably within 6 months from the date of receipt of the order.
7. Upon receipt of this file from the Family Court, Bandra, matter was assigned to this court on 15.02.2023 whereupon Court Notices were issued to both parties for their appearance. Upon appearance of the parties, effective hearing/proceeding in the matter began from 04.03.2023 on which day this court directed that all pending applications or future applications to be filed by parties would be taken up after completion of trial.
8. It seems respondent/wife was under the impression that with the adjudication of her application she would be allowed to be out of this matrimonial tie as almost on all dates of hearing when this court attempted to explore the possibility of settlement she repeatedly submitted that she wanted “mukti”
(emancipation/liberation/deliverance) from this relationship and wanted to lead peaceful life away from the petitioner/husband. However, when she was made aware that she was opposing the divorce being sought by the husband and that she herself had not made any prayer for grant of divorce, then probably realising this folly of her she filed an application under Order VI Rule 17 of CPC on 01.08.2023 for amending her reply/WS to incorporate counter prayer for grant of divorce on the ground of cruelty.
9. Thus, though both are willing to break their matrimonial ties permanently since beginning of the litigation but even at the fag end of the trial/case, they could not agree till date for divorce by mutual consent since they could not agree on other issues involved between them. This Court is wondering if the respective willingness of the parties or prayer of the parties to dissolve their marriage would not amount to mutual consent to dissolve their marriage and their marriage be dissolved without going into merits of the respective allegations of the parties.
10. After perusing Section 13-B of the HMA, this court finds that except for the form all other ingredients required under Section 13-B of the HMA for grant of decree of divorce by mutual consent are present in the present proceeding. The elements/ingredients required under Section 13-B are living separately for one year or more, have not been able to live together and there is consensus at least for dissolving the marriage albeit on their respective prayer.
11. In the present case both are respectively praying (assuming her application under VI Rule 17 of CPC of the respondent/wife stands allowed which will relate back her prayer to the date of filling her WS) to dissolve their marriage, hence there is consent to dissolve their marriage. Since last almost 7 year or more they have not been able to live together and are living separately with no intention/desire/wish to live together at all, so there is separation of more than one year and there is their incapacity of living together. Thus, all three ingredients of Section 13-B are there except the form.
12. Form to be observed/maintained/followed under Section 13-B of the HMA is that a petition for dissolution of marriage by a decree of divorce be presented by both parties together. So the form required here is that parties are required to file one petition together for decree of divorce. Thereafter, both parties are required to make another motion not earlier than six month and later than eighteen months after the date of presentation of the petition and if the petition is not withdrawn in the meantime, the court after hearing the parties and after making such enquiry as it thinks fit and after being satisfied pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. So the second formal requirement before accepting their request for divorce is to allow the parties to have cooling of period of about six to eighteen months from the date of the petition to reconsider their decision of dissolving their marriage and if they remain firm in their decision court would accept their prayer. In the present case their respective decisive willingness to dissolve their marriage is continuously present for the last seven years but simply because willingness/consent were not in the particular form required under Section 13B of the HMA both have been suffering because of each other’s respective pleaded case/stand.
13. Marriage between two Hindus of opposite sex was considered sacrosanct for centuries and it was considered holy union for seven lives with no way out of the marriage, though it was tilted more against women as after death of wife a husband was allowed to remarry but after death of husband a wife was not permitted to remarry or lead normal life. With independence of India law maker realizing the plight being faced by parties to a marriage under certain circumstances, introduced provision of Section 11, 12 and 13 of the Hindu Marriage to provide for relief to those suffering in marriage for certain reason. Objective was still on to preserve marriage and therefore way out of marriage was strict and was based on fault theory. Over a period it was realised that another window out of the marriage was required to eliminate the suffering of failed marriage.
14. Accordingly, Section 13-B of the HMA, 1955 was introduced in India to provide a legal framework for divorce by mutual consent. This was introduced to simplify and expedite the divorce process for couples who wish to part ways amicably, reducing the time, expense and emotional stress associated with traditional divorce proceedings. It aimed to promote a more civilized and less contentious approach to divorce, recognising the changing dynamics of modern relationship and the need for a more practical and less adversarial way to dissolve marriages.
15. Thus, the objective of introducing Section 13B of the HMA was to provide quick relief to the parties to the failed marriage and to ameliorate their sufferings springing off their matrimonial ties. If all the ingredients as required under Section 13B of the HMA are otherwise available in the matter, wouldn’t it be in the interest of the parties in particular and of the society in general to extend the relief of Section 13B of the HMA to those who for any reason are unable to follow or observe the particular form required under Section 13B? Wouldn’t it be recognising the further changing dynamics of modern relationship and going about more practical to ameliorate the suffering of person in unfortunate matrimonial tie?
16. Hon’ble Supreme Court in Samar Ghosh v. Jaya Ghosh MANU/SC/1386/2007 while enumerating some instances of human behavior which may be relevant in dealing with the cases of “mental cruelty” held that long period of separation may be concluded that the matrimonial bond was beyond repair. The marriage had become a fiction though supported by a legal tie and by refusing to sever that tie, the law in such case would not serve the sanctity of marriage; on the contrary, it would show scant regard for the feelings and emotions of the parties. In such like situation it may lead to mental cruelty.
17. In the opinion of this court if parties to a marriage are found to be involved in acrimonious matrimonial discord with grave allegations and with no hope of living together, refusing to dissolve their marriage simply because one party approaching the court has not been able to prove the fault of the other, would amount to forcing parties to suffer further irrespective of there being fault or no fault of the party. Refusal of divorce would lead the parties to face law induced mental cruelty. Time has come to make compulsory prenuptial agreement to be executed before appointed authority after counseling of the parties about the possible risk of marriage going haywire for variety of reasons and making it mandatory to report breach every time breach occurs under intimation to the party allegedly at fault, making it further clear that if breach not reported he/she would not be heard later on that he/she did not report thinking that she/he would improve. In matrimonial relation experience have revealed that victim can be both male and female, hence, balancing of law is also required. It should not be forgotten that contribution of both male and female is in the foundation of country’s development and if one or other feel disappointed of law in this regard, his or her contribution to the nation’s development would be negatively impacted which will not be good for the nation. In recent past matrimonial cases have seen phenomenal increase and most of them does not involve real cruelty but if one unilaterally decided to walk of out of marriage for any reason whatsoever, he or she would not be left with any option but to approach court making allegation against the other party which allegation snowballs into counter allegation and Court of law is pressed into service to find out something which never existed because difference of opinion and disagreements are also reported as an act of cruelty. Till such time real effort is made by the society as whole and the legislature in particular, temple of justice will keep on devising way to respond to the grave situation.
18. Section 9 of the Family Court Act, 1984 mandates Family Court to endeavor for settlement between the parties to marriage. Section 10 of the Family Court Act, 1984 empowers the Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by other party. Settlement could be arrived at between the parties either in respect of entire dispute or in respect of the part of the dispute involved. Further settlement could be arrived at between the parties or Court could put their issue settled by deciding in a way leaving no one aggrieved by the adjudication.
19. This court under Section 10 of the Family Court which is a Special Legislation feels empowered to do away with the form required under Section 13B of the HMA for dissolution of marriage of the parties in a petition as the present one where parties are living separately for more than a year, have not been able to live together, are not willing to live together anymore and there is consent in the form of separate prayer for dissolution of their marriage (albeit for the fault of other). As noted above respondent filed an application under VI Rule 17 CPC for making amendment in the WS so as to include the prayer for grant of divorce on the ground of cruelty as pleaded by her in the WS. Petitioner opposed the application submitting that such belated application for amendment would only prolong the disposal of the present petition and would seriously prejudice the petitioner. But this court finds that mere delay should not be ground to reject the amendment particularly when all the foundational facts have already been pleaded by her in her WS as well in the application/petition under PWDV Act and petitioner does not stand to prejudice as his reply to all the allegations of the respondent is already on record by way of his reply to the application/petition under PWDV Act. Hence, respondent’s application under VI Rule 17 CPC stands allowed and with the allowing of the said application her prayer to dissolve marriage on the ground of cruelty relates back to the date of filling of her WS.
20. This Court, therefore, in the present case in the facts and circumstances as noted above, without going into question as who is at fault so as to allow husband’s or wife’s prayer for dissolution of their marriage on fault theory, hereby dissolve their marriage under Section 13B of the Hindu Marriage Act, 1955 taking their respective prayer to dissolve their marriage (based on the faults of other) as their respective consent to dissolve their marriage, from the date of decree to be drawn up following this judgement.
21. One may tend to see the decision of this court as an successful attempt on the part of the Court to shirk its responsibility to adjudicate by analyzing or sifting through evidence on record in the light of pleadings of the parties accusing each other of having committed matrimonial offenses. Suffice it to say that interest of the State and of the society lies in giving quietus to conflicting claims particularly within family. Barring a few, almost all parties to civil litigation are mostly interested in relief they claimed. Spirit of the Family Court Act is also to bring out settlement between the parties, which means putting quietus to their dispute. In the present case if prayer of husband or wife is accepted holding the other spouse guilty of matrimonial offense, the person against whom findings would go will take the matter to higher forum thus drag the other into rigmarole of further round of litigation with added agony and harassment. Similarly, refusal of their respective prayer, if they failed to prove their allegation, would also lead to law induced mental cruelty as discussed above. Hence, in the peculiar facts of this case dissolving their marriage under Section 13B of the HMA in the aforesaid manner is the only way out to provide quietus to their unending matrimonial acrimony and bitterness as would become clear hereinafter.
22. Although with aforesaid adjudication in aforesaid manner, present matter could have been disposed of but for other prayers made by the parties. Petitioner in his petition besides seeking for divorce on the ground of cruelty had also sought permanent custody of the child Aahana. Respondent, besides seeking divorce by way of amendment in her written statement, in her original written statement had prayed for numbers of reliefs. Further, she had also filed petition/application under Section 12, 18, 19, 20, 22 and 23 of the PWDV Act, 2005 seeking reliefs contemplated in those provisions of the PWDV Act, 2005. Hence, based on cumulative pleadings of the parties both in petition, WS and aforesaid application under PWDV Act and reply thereto, Ld. Family Court at Bandra, had thrashed following issues on 15.01.2019 :-
1. Does the petitioner prove that the respondent has after the solemnisation of the marriage treated him with cruelty?
2. Whether the petitioner is entitled for dissolution of marriage?
3. Whether the petitioner is entitled to get permanent custody of the child named as Aahana?
4. Who is entitled to get the permanent custody of the child “Aahana”?
5. Whether the respondent is entitled to get maintenance towards educational expenses, upkeep for the daughter Aahana, from the petitioner as claimed?
6. Whether respondent is entitled to get a car and driver, from the petitioner, as prayed?
7. Whether respondent is entitled to the protection order/injunction order in respect of property situated at Vatika India, next Sector 82-A, Near 42k, Toll plaza NH-8, Gurugram 220004 Haryana, India Plot No. s/300/085, against the petitioner, as prayed?
8. Whether respondent is entitled to the injunction against the petitioner for selling, transferring, creating third party interest in respect of flat situated at A-1901/1902, Cosmic Heights Apts, Bhakti Park, Wadala East, Mumbai 400037?
9. Whether respondent is entitled to the direction be given to the petitioner that he should pay EMI’s as per loan agreement and he shall also pay monthly maintenance and outgoings of the flat A-1901/1902 at Bhakti Park, Wadala, Mumbai as prayed?
10.Whether respondent is entitled to get return back her jewelery and stridhan, as prayed?
11. Whether respondent is entitled to the reliefs claimed by her in her D.V. application below Exh.27 against the petitioner?
12. What order and decree?
23. Both petitioner and respondent, besides examination themselves as PW1 and RW1 respectively, have also examined one witnesses PW2 and RW2 each in support of their case. Interestingly, PW2 and RW2 are former couple who after fierce and acrimonious legal matrimonial dispute compromised and parted ways by mutual consent. Relevant testimonies of the parties and each witness shall be discussed wherever same would be needed. It is, however, relevant to note that parties relied upon many electronic records but almost of them were not proved as per law. Certificate under Section 65B of the IEA only makes the electronic record admissible, it does not exempt parties from proving it as per law. Most of the electronic record was produced by the petitioner during the cross examination of the respondent which were denied by the respondent and petitioner did not have chance to prove the same as his evidence was already over. Surprise documents in cross examination are mostly such document which are not likely to be denied or if denied person cross examining would have chance to prove the same in his evidence, otherwise whole exercise will be futile. Hence, most of the electronic record placed on record were could not be considered for want prove as per law. Ld. Counsels for parties were heard at length stretched in several hearings. Parties have also filed their respective written submissions along with various case laws. Their submissions, case laws etc. would be discussed wherever same would be required.
24. Before taking up findings on issues, it would be relevant to note that when parties are well informed and equipped with information and tools they make things more complicated not only for authorities but also for themselves. Education was thought to be a tool for better life but in matrimonial discord education have not helped parties to sacrifice, leave, take steps back, have patient and other qualities which could resolve dispute or if not resolve at least let it not escalate. In the present case parties have followed Hindi idiom “Tu dal dal, mai pat pat” which probably in English mean “ if you are smart, I am smarter”. Issues are taken up one by one.
Issue No.1:- Does the petitioner prove that the respondent has after the solemnisation of the marriage treated him with cruelty?
Issue No. 2:- Whether the petitioner is entitled for dissolution of marriage?
25. Although issue No. 1 and 2 have become infructuous or redundant in view of this court coming to the conclusion to dissolve their marriage between the parties by a decree of divorce under Section 13B of the Hindu Marriage Act, 1955, yet same is taken up for adjudication so that if on appeal Hon’ble High Court were not to agree with the decision of divorce under Section 13B, it would not be left with no findings on the issues thrashed.
26. In nutshell grievance of the petitioner is that after marriage when respondent did not conceive for two years, she started blaming him claiming that he did not have proper sex drive and suffered from erectile dysfunction and started berating, humiliating and insulting him on that count not only within the four corner of the house but also before family, friends, maids and public which caused tremendous mental cruelty upon him. Later, family members of both side got involved in the issue of erectile dysfunction causing immense embarrassment for him. In order to save marriage and make her happy he also consulted doctor of her choice and underwent all tests prescribed which reported everything normal, yet at the desire of the respondent doctor prescribed some medicine for enhancing sexual pleasure but all his effort in agreeing to go to doctor, test etc. did not improve their relation. Later respondent falsely started accusing him and his family members of harassing her for dowry and that they had appropriated her money and jewelery/stridhan given at the time of marriage. She also later falsely started claiming that her mother-in-law was not happy with dowry articles brought and that she had given birth to girl child and that her mother-in-law did not give proper care rather made her life well. Respondent also prevented him for participating in family function marriage, death etc. or rituals and if he did so she used to quarrel with him. Finally, she accused him of violently and physically abusing her. She also got false FIR registered against him and his family members in Narwana, Haryana and made false complaint to Mumbai police.
27. Respondent in her reply stated that marriage between the parties could not consummate owing to erectile dysfunction for first six months, however, possibly after some secret medication marriage did consummate and petitioner was able to perform sexual intercourse for some time and a girl child was born to them but problem of erectile dysfunction continued, she was co-operating with petitioner to get it treated but petitioner was not ready to accept that he was suffering from ED and was not ready for medical help. His inability to perform manifested itself in his violent conduct towards the respondent. She denied having berated, humiliated or insulted the petitioner either in private or in public. Only after the birth of the child, respondent took up this issue with family members of both side since petitioner’s problem continued and he was not ready to take medical help. She further went on to accuse petitioner and his family members (mother, father, brother and wife of brother of the petitioner) of compelling her family members to give dowry amounting over Rs. 1.25 Crore, forcing her to bring additional sum of Rs.1.5 lakh, torturing and taunting her for dowry, refusing to give back her jewelery/stridhan and money entrusted to them, mother-inlaw not giving her proper care post delivery of the child, petitioner assaulting physically and verbally.
28. Neither party examined any medical expert to prove conclusively whether or not petitioner suffered from ED. However, consultation with doctor later, albeit at the insistence of the respondent and her family members, is not disputed. Ld. Counsel for the petitioner contended that onus was on the respondent to prove with the help of medical expert that petitioner was suffering from ED whereas Ld. Counsel for the respondent contended that onus was on the petitioner to prove with the help of medical expert that he was not suffering from ED. Ld Counsel for the respondent further submitted that in any case respondent had proved that petitioner was suffering from ED as he admitted that parties had consulted Dr. Vineet Malhotra who prescribed medicine named Nano leo Tab, Modula 5 mg and Caverta 25mg, worldwide known medicine for the treatment of ED, besides petitioner also admitted that marriage did not consummate for first six months. He, hence, contended that it lay bare that petitioner was suffering from ED and respondent was making genuine grievance to petitioner’s family and her family in this regard. In any case, he contended, nothing has been proved on record that she ever berated, humiliated or insulted him in this regard, on the contrary she suffered at the hands of the petitioner for his inability to rise to the occasion manifesting itself in violent conduct towards her.
29. Having given thought over the dispute particularly opposite claim of the counsel for parties regarding bearing the onus to prove ED or no ED, this is of the view that so far Court of law is concerned natural presumption is that human is born normal and he/she grows normal with all functionality of the organ as per the sex he/she belongs to unless specifically reported otherwise. In other words, a male or female is naturally presumed to have all her organs and body parts normal and functioning normally unless contrary is proved satisfactorily before the court or unless something otherwise of which court can take judicial note of comes to it, like if a litigant appears with one leg amputated, court cannot draw natural presumption of normality so far as his capacity to walk and run on his two legs are concerned. So, in the present case onus is on the respondent to prove that petitioner suffered from ED.
30. Now in the facts and circumstances of the present case on the basis of material on record, it has got to be seen if it has been proved on record that petitioner was suffering from ED or like situation bearing in mind that ED is a medical condition about which final opinion rest with medical expert.
31. Petitioner approached the court stating that since petitioner did not conceive for first two years, she started claiming lack of sexual drive in him and that he was suffering from ED and later started calling him “Napunshank” (impotent) etc. Besides denying such allegation, respondent in her reply as well as in the petition under PWDV Act (paragraph No.14), specifically pleaded that marriage between the parties could not consummate for first six month of marriage due to ED. Though no replication is on record (may be such was not practices in Mumbai) yet petitioner got chance to reply the allegation of non-consummation of marriage for first six months due to ED when he filed reply to the petition under PWDV Act. For better appreciation it would be worthwhile to note their respective pleadings which as under :-
“14. The Applicant states that the Respondent No.1 was unable to consummate their marriage even during their honeymoon and infact for six months post their marriage as he suffered from erectile dysfunction. The Applicant requested her Respondent husband to visit a doctor. Sadly the Respondent No.1 would dismiss her plea and insisted that it was in fact her own lack of knowledge that they were not able to consummate their marriage and she should look up the internet. The Applicant further states that her Respondent husband confided in her that he used to indulge in self pleasure by way of masturbation prior to their marriage and because of excessive and prolonged masturbation performed by him, he was unable to get a proper erection. However, he assured her that with time it would improve and if not then he might consider going to the doctor after 6 months. Thereafter, she assumed that he had possibly taken some medication because for a limited and short-lived period physical relations commenced between them. The Applicant states that as her Respondent husband was unable to get an erection in a natural manner, he most often forced her to perform oral sex which was much against her wishes and caused her extreme anxiety and distress.”
32. In response to paragraph No. 14 of the petition under PWDV Act, petitioner (whose was respondent No.1 in the petition under PWDV Act) replied as follows:-
“With reference to the Paragraph 14, the respondent No.1 states that the contents are highly objectionable and are humiliating and patently false especially as these allegations have been made after the respondent No.1 has approached the Family Court on the ground of cruelty, exposing the conduct and character of the Petitioner. The Respondent No.1 states that the very fact that the Petitioner lived with him till 7th Aug 2016 and the allegation have been made after the birth of the child definitely prove that it is done to malign his name and cause mental stress and agony to him. The Respondent No.1 stated that he denies that the had made such derogatory statements as stated by the Petitioner whose mental status need to be looked into. The Respondent No. 1 states that such false allegation made therein can only be made by a person, who herself is suffering from some mental issues. The Respondent No. 1 states that the Petitioner happily came for vacations with him and even then did not make any complaint or approach court. The Respondent No. 1 states that, if her allegations are true and correct, than the Petitioner would not have waited till 2017 to approach the Court against the alleged allegations and would have gone ahead with dissolving the marriage”.
33. From the reply of the petitioner, it is clear that he dismissed as false allegation the submission of the respondent that marriage for first six month did not consummate due to ED, he called upon to look into her mental status and went on to allege that such an allegation could be made by person who herself was suffering from mental issue. His stand both from his petition and above reply is to the effect that marriage was consummated normally and that too in initial few days of the marriage, nevertheless in cross examination he categorically deposed that for the first few months the marriage was not consummated as the respondent was not comfortable having physical intimacy with him and he did not remember the exact date but after 4-5 months they started having normal physical relation. IN his letter to police in Haryana he wrote that physical intimacy could not be established in first few months as respondent was depressed on account of her sister’s suicide. If it was for the respondent that physical intimacy could not be established for first few months it was his duty to plead so in his pleading before the court that for son-so reason marriage could not be consummated particularly when he approached the court complaining that respondent had been accusing him of suffering from ED. He got another opportunity to come out with truth when he filed reply to application under PWDV Act but there also he dismissed as false the said submission of the respondent as noted above. The reason which he now put forth in evidence for non-consummation of marriage for first few months of the marriage cannot be accepted as bonafide. Weighing on the scale of preponderance of probability, the reason put forth by the respondent for the non-consummation of marriage between the parties for first six months seems more plausible. Seen through the prism of attempt made by the petitioner to paint the reality in his own way, his every allegation get covered with taint.
34. Irrespective of above, there is no dispute that parties did consult Dr. Vineet Malhotra and his prescription Ex PW1/R1 is undisputed. It is also undisputed that Dr, Vineet Malhotra prescribed certain medicine which petitioner claims to have been given at the request of the respondent for enhancing sexual pleasure and respondent claims that said medicine was given for treating ED. Perusal of his prescription did show that “N” has been written against testosterone, sperm and prolactin tests which petitioner claim mean Normal whereas respondent has drawn attention towards the medicines prescribed i.e. Modula 5mg, Nano leo Tab and Caverta 25 mg to suggest that medicine were meant for treating ED as medical science tell these medicines are given for treating ED. From the prescription it is not clear whether the medicine was prescribed after test or before test, however, petitioner himself deposed that on 26.09.2015 he had gone to show his test results conducted on 15.09.2015 which means aforesaid medicine were prescribed on 26.09.2015, the date PW1/R1 bears. Petitioner admitted of having been prescribed medicine but claimed it was prescribed at the instance of respondent for enhancing sexual pleasure. All these medicines in general are directed towards treatment of ED, comes under prohibited category and cannot be sold over the counter of medicine shops without doctor’s precription. Study also suggest such medicines can also be provided for enhancing the duration of sustained erection. Although in general it is not believable that a medicine would be prescribed at the instance of the partner of a couple but exact reason for prescribing such medicine could have been explained by the doctor himself who has not been examined by either party. Since this court is not a medical expert hence in the absence of expert medical opinion court cannot conclusively rule that petitioner was suffering from ED, nevertheless, in the circumstances as unfolded above it can certainly be ruled that physical intimacy between the parties was running into rough weather and which must have led to argument and counter argument pushing the parties to be at loggerhead on multiple issues.
35. There is no dispute that every members of the family of the petitioner and respondent and some of the relatives of both side came to know about the issue between the parties. Sexual encounter in marriage is not a one time affair. Probably homo-sapience are the only species on earth which indulges in sexual activity for pleasure beside for procreation, hence they undertake sexual encounter number of times. The complexity of human sexuality involves both physiological and psychological factors, making it a multifaceted aspect of human behaviour and relationship. So even if it is assumed that after 5-6 months of marriage parties did get into intimacy but above discussed things show that problem was continuing. So when there was any issue qua sexual encounter for any reason whatsoever, it was first required to be accepted and then addressed with compassion.
36. From above discussion it is clear that getting intimate by the parties was not as normal as it should be, may for ED or otherwise and therefore, there was reason to accept and address it but it seems petitioner was not ready to accept the existence of issue. If any issue remains unaddressed it was but natural for any one to share one’s concern with the one he/she consider close to himself/herself. In the circumstance if respondent took up this issue with her mother or for that matter with family members of the petitioner or other relatives for finding solution, she could not be blamed. However, it is understandable that in this circumstance everyday discussion might have flared up and resulted into whataboutery from both sides and might have been discussed in private as well as in public and in that circumstance one is bound to feel insulted or humiliated but he cannot crib over it because he created such situation by not addressing it.
37. Of course if he had taken steps to redress the same right from beginning in co-operation and under assurance of the respondent and if respondent had midway divulged everything to everyone then probably she would have been guilty of humiliating him. Grievance of the petitioner was that she was falsely claiming that he was suffering from ED but circumstance as come out on record do show that she was justified in thinking so, even if he was suffering from ED or not, and had justifiably taken up the issue with family members and relative of both sides. Hence, in the circumstance it can not be said that she was making false claim even though it has not been proved on record conclusively that petitioner was suffering from ED.
38. About rest of the allegation of the petitioner that she was accusing them of harassing her for dowry, or compelled her family to give dowry amounting over Rs. 1.25 Crore, or his family members refused and appropriated her jewelery/strdihan/money or that he had and his family members have assaulted her etc., suffice it to say that respondent in her reply as well as in petition under PWDV Act has reiterated all these allegations which shall be dealt with separately later, and therefore, petitioner is not required to prove if she made these allegations or not as same stands admitted. However, since petitioner approached the court with unclean hands i.e. to say in a calculated way to frame the respondent of falsely claiming of sexual issue, this court thinks that petitioner is not entitled for divorce on the ground of cruelty even though by default his other allegation stand made out on account of the stand taken by the respondent in her reply as well as in the application under PWDV Act. Thus, issue No.1 and 2 are accordingly decided against the petitioner.
Issue No. 7:- Whether respondent is entitled to the protection order/injunction order in respect of property situated at Vatika India, next Sector 82-A, Near 42k, Toll plaza NH-8, Gurugram 220004 Haryana, India Plot No.s/300/085, against the petitioner, as prayed?
39. Before taking up other complicated issue some relatively less important or less complicated issues are taken up first. Issue No 7 is one such issue.
40. About the above mentioned property (situated at Vatika India, next Sector 82-A, Near 42k, Toll plaza NH-8, Gurugram 220004 Haryana, India Plot No. s/300/085), suffice it to say that respondent neither in her WS nor in her application under PWDV Act pleaded anything about this property except for making prayer qua this property in her WS and in the application under PWDV Act, 2005. However, in her application for grant of interim maintenance she had claimed that petitioner husband had purchased this land along with Preeti Jain (bhabhi) in 2010 for Rs. 60 lacs but respondent in her examination-in-chief Ex RW1/A did not testify a single word about this property. Obviously there is no document regarding ownership or possession of this property nor is there any questioning to the petitioner about this property. Hence, in the circumstance this issue has got to be decided against the respondent/wife.
Issue No. 8:- Whether respondent is entitled to the injunction against the petitioner for selling, transferring, creating third party interest in respect of flat situated at A-1901/1902, Cosmic Heights Apts, Bhakti Park, Wadala East, Mumbai 400037?
41. As fas issue No. 8 qua property A-1901/1902 at Bhakti Park, Wadala, Mumbai, is concerned, respondent neither in her pleading in WS nor in her application under PWDV Act, 2005 alleged that petitioner ever threatened to dispose of, sell, transfer or create third party interest in the said property and therefore, there was no cause of action for the respondent to seek the relief of injunction as prayed for. It is worthwhile to note that petitioner had filed an application (Ex.8) to appoint a court commissioner for partition and division of the aforesaid property A-1901/1902. On the contrary respondent had filed an application (Ex.14) seeking restrain order against the petitioner from creating nuisance, entering in the said home and from creating third party rights in the matrimonial home. Vide separate order of even date 06.04.2017 Ld. Family Court, Bandra dismissed the application (Ex.8) holding that relief claimed was of final nature which cannot be granted at interim stage, but partly allowed the application (Ex.14) of the respondent thereby temporarily restrained the petitioner from creating third party rights in respect of the above mentioned property No. A-1901/1902.
Relevant part of the order dt. 06.04.2017 on application (Ex 14) is as below :-
“6. Considering facts and circumstances, argument advanced and documents on record, I come to the conclusion as follows:
7. The petitioner has produced the agreement to sale in respect of flat Nos. 1901 and 1902. Earlier joint owner Mr. Bhushan Sethi and Mrs. Rohini Sethi have sold theses flats to the present petitioner Mr. Sumit Jain and respondent Shraddha Gupta.
8. It is also admitted fact on record that flat Nos. 1901 and 1902 have been purchased by the petitioner and the respondent jointly. In flat No. 1901, petitioner is the primary owner, whereas in flat No. 1902 respondent is primary owner. The respondent has given details of the down payment paid towards purchase of both these flats. According to respondent, the petitioner has paid Rs. 7.5. lakhs towards down payment of flat No. 1901. whereas, the respondent has paid Rs. 21.5. lakhs towards down payment of flat No. 1902. According to the respondent, petitioner has availed loan of Rs. 81.5 lakhs pertaining to flat No. 1901, whereas the respondent has availed loan of Rs. 56.5 pertaining to flat No. 1902.
9. It is also case of both the parties, that both these flats 1901 and 1902 are adjacent to each other as if they are one flat. The petitioner-husband had filed application at Ex. 8 for appointment of Court Commissioner for partition of both theses flats. It means, as on today, both these flats are joint in nature.
10. According to the respondent-wife, she is residing in the said flat and she apprehends that the petitioner may enter into the matrimonial home and it will be harmful and injurious to her life and safety. Both these flats are joint flats. As per the documents on record, the petitioner and the respondent are both owners of both these flats. The petitioner-husband being one of the joint owner ca not be restrained from entering into the flat which is jointly owned by him, wherein he is the primary owner and also repaying the loan of the same. Therefore, prayer clause (i) cannot be allowed.
11. As per the facts on record, and documents on record flat Nos. 1901 and 1902 both are jointly owned by the both the parties. Under such circumstances, if the petitioner is temporarily restrained from creating third party interest, or dealing with these flat, till disposal of the petition,will meet the ends of justice.”
42. Perusal of above order would show that petitioner was restrained from creating third party interest in the property not because of any threat issued by the petitioner but simply court considered it necessary to do so as parties were joint owners. However, in order to make that temporary relief permanent this court would need cause of action but neither in the pleadings of the respondent nor in her testimony she averred/testified a single word that petitioner ever threatened of creating third party right in the said property or that he did not have any right in the property as admittedly they were joint owners.
43. Further, aggrieved from the order dt 06.04.2017 passed on applications (Ex.8 and Ex.14) both petitioner and respondent challenged the same before the Hon’ble Bombay High Court vide Writ Petitions No. 7175/2017 and 6268/2017, however, Hon’ble Bombay High Court vide its common order dt. 13.04.2018 confirmed both orders dt. 06.04.2017 on Ex. 8 and Ex.14 of the Ld. Family Court, Bandra.
44. Aggrieved from the order dt. 13.04.2018 respondent/wife filed SLP (C) No. 10907/2018 wherein parties agreed for the partition of the aforesaid flat Nos. 1901 and 1902 in accordance with the consent terms agreed by the parties and accepted by Hon’ble Supreme Court whereafter vide order dt. 12.11.2018 SLP(C) No. 10907/2018 was disposed off in accordance with consent terms. It is learnt that subsequently respondent herein had filed contempt petition against the petitioner for violation of the consent terms and petitioner had filed an application/petition for modification of consent terms.
45. Further, on 14.03.2019 petitioner herein filed an application (Ex.104) under Order XIV Rule 5 of CPC for framing issue regarding ownership of the aforesaid flat and respondent as her say (reply) on 04.06.2019 made endorsement in her own handwriting in the application (Ex.104) itself, to the effect that “I leave it to the Hon’ble court to consider in lieu of order passed by the Hon’ble Supreme Court with respect to issue of flats”.
46. Perusal of the consent terms between the parties would show that parties had agreed more or less on the line of the stand taken by the petitioner that is to say that petitioner was primary owner of the Flat No. 1901 and respondent was primary owner of Flat No. 1902. Parties had agreed to partition the said joined flats into two with petitioner occupying flat No. 1901 and respondent occupying flat No. 1902. Petitioner claimed it was to be temporary partition whereas respondent claims it to be final partition. Be that as it may, consent terms make the intent clear that petitioner would be exclusive owner of Flat No. 1901 and respondent would be exclusive owner of Flat No. 1902 and both would repay their respective home loans on their own. However, said consent term has hit rough weather and matter is subjudice before the Hon’ble Supreme Court and therefore, issue of ownership qua above flat Nos 1901 and 1902 is being left open to the command of the Hon’ble Supreme Court. Thus, petitioner application (Ex.104) under Order XIV Rule 5 CPC stand disposed off accordingly. However, as far as relief of permanent injunction as prayed for qua this property is concerned, same cannot be granted as respondent neither in her pleadings nor in her testimony brought on record any threat from the petitioner that he was threatening to sell, dispose off or create third party right in the said flat or that he did not have any right in the said property. Moreover, in the case of joint owner of a property, simplicitor relief for injunction for restraining the co-owner without seeking partition is not maintainable. Hence, issue No. 8 is decided against the respondent.
Issue No. 9:- Whether respondent is entitled to the direction be given to the petitioner that he should pay EMI’s as per loan agreement and he shall also pay monthly maintenance and outgoings of the flat A1901/1902 at Bhakti Park, Wadala, Mumbai as prayed?
47. Issue No. 9 no longer survives and therefore it does not call for any adjudication by this court following the consent terms agreed to by the parties before the Hon’ble Supreme Court. Though said consent terms has fallen into rough weather and matter is subjudice before the Hon’ble Supreme Court, parties are directed to act as per the consent term qua repayment of home loans and maintenance of the flats to the society till the outcome and subject of course to outcome of the matter pending before the Hon’ble Supreme Court. Issue No. 9 thus stands disposed off accordingly.
Issue No. 10 – Whether respondent is entitled to get return back her jewelery and stridhan, as prayed?
48. Respondent in her prayer has prayed for jewelery and stridhan. In her pleadings she specified jeweleries as – 3 diamond sets, 4 gold sets, 2 pairs of diamond kadas, 2 gold kadas, 4 gold bangles, 21 gold ginnis, 3 gold chains, Solitaire earrings, Solitaire diamond ring, 4 other diamond rings. Besides these jeweleries, she pleaded to have been given 30 silver glasses, 10 silver bowls, Silver tea set with tray, 10 silver plates and 500 gm silver coins silverware and other household items like expensive bed linen, crockery, clothing etc. all worth Rs 10 Lakhs.
49. Although no replication on behalf of the petitioner is on record nor is it known if filing of replication was or was not prevalent in Mumbai Civil/Family Court, yet petitioner/husband got chance to file his defense to what respondent wife had alleged against him and his family members in the application under PWDV Act (and also in WS). In reply to the application under PWDV Act, petitioner husband denied that he or his family demanded dowry or cash was paid to them and while denying all allegation against himself and his family members submitted that prior to filling of this petition/application respondent had visited her mother’s residence in Chandigarh and her maternal uncles’ residence in Haryana on several occasions without any intimation or his knowledge and therefore, in every possibility she herself had kept the jewelery with her mother and was falsely claiming that jewelries lied entrusted to his mother.
He denied that ornaments as specified by her were entrusted to his family. In his petition he had already pleaded that “respondent had kept some of her jewelery in a locker in Delhi opened before marriage in the name of the petitioner and his mother for the respondent’s convenience. Being hurt with the accusations, the petitioner opened the locker, along with respondent, and gave the respondent all her jewelery kept in the locker in Delhi”.
50. Although there is general denial of all the allegations but petitioner/husband did not specifically deny the items of ornaments and silverwares and other stuffs that respondent wife claimed to have been given to her nor did he deny their worth as pointed out by the respondent, nevertheless, he specifically denied that they were entrusted to his family particularly to his mother, though he admitted that respondent had some of her jewelery in the locker and following her accusation locker was opened and respondent was given all her jewelery in that locker.
51. Sh. Varun Sharma, Ld. Counsel for petitioner contended that respondent wife did not lead any evidence to prove that named jeweleries, silverwares and other stuffs were purchased at all for being given to her by producing invoices of purchase and by proving them as per law. He contended that once it was not proved that these jeweleries and other articles were purchased for being given to her, it could not be believed that they were given and therefore, her claim for return of jeweleries and stridhan was not sustainable.
52. Contention of Ld. Counsel for petitioner would have hold water if petitioner in his reply had specifically denied the items of jeweleries and other items and their worth. Petitioner only denied their entrustment to his family/mother. Once he did not deny items of jeweleries and others items and their worth, he cannot be heard to say that respondent was required to prove their purchase and their value.
53. Now the next question is whether jeweleries, silverware etc. were entrusted to petitioner’s family as pleaded by her. In her WS, respondent pleaded that “her family was also compelled to entrust jewellery worth Rs. 30 lakhs and silverware and other household items like expensive, bed lined, crockery, clothing etc. worth Rs. 10 lakhs for the respondent in the care of the petitioner’s mother and the petitioner’s brother and his wife”. Exactly same she pleaded in her application under PWDV Act, 2005. In her testimonial affidavit Ex RW1/A also she testified “my family was also compelled to entrust jewellery worth Rs. 30 lakhs and silverware and other items of crockery, household effects, bedlinen clothing etc. worth Rs. 10 lakhs, which was for me and only left in the care of the petitioner’s mother and his brother and his wife”.
54. From the pleading and testimony of the respondent it is very clear that it was her (respondent’s) family who were compelled to entrust jewelery and other items with petitioner’s mother and his brother and his bhabhi. Neither in her pleading nor in her testimony she specifically claimed that it was she who had entrusted the same to petitioner’s mother, brother and wife of his brother. Respondent did not examine any of her family members to prove that jeweleries and other stuffs were delivered/entrusted to mother, brother and bhabhi of the petitioner. Her own testimony to this effect is hearsay as she no where pleaded or testified that she was present when jeweleries etc. were being entrusted to petitioner’s mother, brother and bhabhi.
It is settled law that one has to stand on one’s own leg. The best witness could have been her mother or uncles who allegedly entrusted the jeweleries etc. to mother, brother and bhabhi of the petitioner. 55. How far petitioner pleading regarding handing of jewellery could be helpful for the respondent? As noted above petitioner had pleaded that she had kept some of her jewelery in a locker in Delhi opened before marriage in the name of the petitioner and his mother for the respondent’s convenience and being hurt with the accusations, he opened the locker, along with respondent, and gave the respondent all her jewelery kept in the locker in Delhi. Thus, petitioner do admit that some of her jewelries were kept in the locker and same was handed over back to her.
56. So now there is stand of the petitioner qua some of her jewelery as noted above pitched against respondent’s failed stand that her family members were compelled to entrust jeweleries and other material to petitioner’s mother, brother and wife of his brother. Further, it is the stand of the petitioner that in all probability respondent had transferred her jewelery either to Chandigarh or Narwana and she had been falsely claiming that same had been misappropriated by her in-laws. It was his assumption. During cross examination of respondent, after almost eight years of taking stand in the pleading, petitioner equipped with further information sought to prove that respondent kept those jeweleries with herself in the locker No. 38 jointly held by them in Axis Bank, Chembur, Mumbai which locker she got freezed and subsequently, on 19.11.2015 she transferred her stridhan in her newly opened locker bearing No. 269 in the same bank and branch. Respondent in her pleading had herself pleaded that she got the said joint locker freezed in July 2015 and in cross examination she admitted that she had opened her individual locker No. 269 in the same bank and branch. In cross examination she denied that she had individually operated the locker No. 38 on 19.11.2015 from 11.30 AM to 11.35 AM and immediately thereafter she operated her individual locker No. 269 and transfered her stridhan from the joint locker No. 38 to her individual locker No. 269 on 19.11.2015.
57. Seen in the light of above, onus shifted upon the respondent to explain what valuable, if not her jeweleries, was there in the joint locker No. 38 that she thought it necessary to get it freezed and what valuable, if not her jeweleries, she wanted to store that she opened a new locker No. 269. No concrete evidence has come on record that after freezing the locker, respondent single handedly operated the same though suggestion to this effect was given to her in her cross examination which suggestion she denied. It is an admitted position that parties did not live together after 07.08.2016 and separation followed police complaint whereafter both were taken to Wadala police station whereafter petitioner was allowed to pick up his laptop and few clothes etc. in the presence of constables. Hence, such situation did not leave chance for the petitioner to leave the house with jewelery etc. of the respondent. Consequently, on holistic view of the facts that came on record discussed above and based on preponderance of probability, it can safely be concluded that petitioner failed to prove that her jeweleries and stridhan were entrusted to petitioner’s mother, brother and brother’s wife or that same were retained by the petitioner.
58. Further in paragraph 28 of her petition under PWDV Act, she herself had pleaded that she was given part of her jewelery upon the intervention of her relatives and with great reluctance from the respondent’s family, while larger part of the jewelery was still kept by petitioner’s family. Under this situation when respondent has named the jeweleries which were allegedly entrusted to petitioner’s family and when part of it was returned to her then ball lay in her court to name those articles which she had received back and which were allegedly retained by petitioner’s family. In the absence of such clarity, plea of the respondent in this regard become vague.
59. It must be noted that Sh. Prashant Mendiratta, Ld. Counsel for the respondent relied upon recorded conversation (audio file No.1) in CD Ex. I in Ex. 28 transcript of which is Ex PW1/R6E between petitioner and his friend Ritwik Bisaria to convey that in his conversation with said friend petitioner had admitted that respondent’s jeweleries were in locker and that they did not let her take. He had argued that respondent had proved the said conversation because petitioner in his cross examination admitted that in Nov, 2014 he was recording his conversation with his friend Ritwik Bisaria, that he did not raise any objection qua veracity/genuineness etc. when said conversation/transcript was filed on record and that he admitted that one of the voice was his. Hence, he contended that said transcript proved that petitioner and his family refused to give her jewelery/stridhan.
60. Contention of the counsel for respondent is not sustainable firstly because said recording has not be proved on record as per law.
Secondly, it is not the case of the respondent that conversation between the petitioner and his friend was recorded by the respondent herself or by any person deputed by her or it got recorded in any system with or without active participation of human agency under the control of the respondent. Thirdly, petitioner did not admit that relied upon conversation was recorded by him either in his own phone or elsewhere. Fourthly, respondent did not depose anything about the source from where she got the said recording, even if it was allegedly recorded by the petitioner. Fifthly and more importantly in the said conversation/transcript itself he is heard (shown speaking in transcript) saying – “it was also decided ke jewelery mein whatever she wants to take she is going to wear in a wedding let her take that thik hai but she took almost everything and again my brother said………….gaye. She had also taken one or two jewelery from Bombay locker……………………….. to basically wo yahan se bi ek do samaan le ke gai thi wahan se kaafi saara samaan leke chali gai and then there were some few things left to be kept in Bombay locker so I asked her chaabi kidhar hai she said yahaan pe ghar pe hai Bombay mein”. Thus, even if recorded conversation Ex. PW1/R6A is relied upon, this conversation is of no help to the respondent as petitioner is also heard saying that she took almost everything and thus this conversation on the contrary supports the stand of the petitioner. Hence, issue No. 10 is decided against the respondent and in favour of the petitioner.
Issue No. 11:- Whether respondent is entitled to the reliefs claimed by her in her D.V. application below Exh.27 against the petitioner? 61. Issue No.11 is with respect to prayer made by the respondent against the petitioner in her application under Section 12, 18, 19, 20, 22 and 23 of PWDV Act. Respondent had filed this application in the petition for divorce filed by the petitioner/husband and as per Bombay High Court Hindu Marriage and Divorce Rules, 1955 in a divorce petition parties to the lis are only husband and wife and no other person. In Delhi also it so except in the case of petition for divorce on the ground of adultery where adulterer is also one of the party unless exempted for a reason.
62. Respondent filed her above application not only against petitioner but also against mother, father, brother and bhabhi of the petitioner.
Issues in the present matter were framed on 15.01.2019 and till then notice of the application under PWDV Act, 2005 was not issued to the mother, father, brother and bhabhi of the petitioner. It was only when petitioner moved an application to this effect or seeking their discharge that respondent also filed an application for issuance of the notice of the application under PWDV Act to them and notice of the same was ordered to be issued to them on 14.08.2019. Petitioner’s mother, father, brother and bhabhi (arrayed as respondent No.2 to 5 in the application under PWDV Act) put in their appearance on 01.10.2019 by filling an application challenging issuance of notice to them.
63. An application along with their defense came to be filed by them before this court on 12.04.2023 thereby requesting to take on record their defense after condoning the delay occurred on account of the reason stated in the application. Following order dt. 04.03.2023 of this court, said application was to be taken up after completion of trial.
64. Although application for reliefs under PWDV Act, 2005 can be filed as miscellaneous application in the petition under Hindu Marriage Act, but in that case procedure as prescribed under PWDV Act, 2005 may not be strictly followed and by and large such application/petition can be treated as any other miscellaneous application within the petition under HMA where reliefs against inter-se parties can be sought. However, when in a miscellaneous application relief is also sought against other persons besides parties to the litigation, then such application should be filed or treated as an independent suit, petition or complaint and same was required to be registered separately as is done in the case of counter-claim. But it was not done so in the present case.
65. Be that as it may, before proceedings with the application of mother, father, brother and bhabhi of the petitioner, it would be useful to find out if respondent/wife ever lived with them in domestic relation in a shared household, though there is no dispute that they are related by marriage, consanguinity etc. Going by the pleadings of the respondent, it is her admitted case that at the time of negotiation of marriage and at the time of marriage she was working in Delhi with Axis bank whereas petitioner was working with Axis bank in Mumbai. It is her admitted case that after her marriage she shifted to Mumbai forfeiting the security of her hometown and familiar environment of work in Delhi to set up her matrimonial home in Mumbai. From her pleadings it is also clear that parents of the petitioner are resident of Delhi and that brother and bhabhi of the petitioner were not residing with petitioner and respondent in Mumbai. None of them ever came to Mumbai to live permanently with petitioner and respondent in their matrimonial home.
Respondent herself never lived (with some amount of permanence) in Delhi with mother, father, brother and bhabhi of the petitioner or ever shifted to Delhi to live with them. In her evidence also she did not specify as to when and where mother, father, brother and bhabhi of the petitioner lived with her permanently or with sense of permanence under one roof. The above noted position of their living from the pleading remained same even after her testimony.
66. The Hon’ble Delhi High Court in Harbans Lal Malik v. Payal Malik 171 (2010) DLT 67 observed as under in para 18 of the judgment :
“Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and / or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad, maintaining a family there and children are born abroad. I, therefore, consider that Harbans Lal Malik could not have been made as a respondent in a petition under Domestic Violence Act as he had no domestic relationship with aggrieved person even if this marriage between her and her husband was subsisting.” (emphasis supplied)
67. In the case of Vijay Verma v. State of N.C.T. 2010 (7) AD (Del) 401 the petitioner therein before the Metropolitan Magistrate had filed the domestic violence petition against her brother and his wife, interalia, insisting on a right to residence in the property occupied by the brother in India. It was found that the petitioner therein had settled her separate house in U.S.A where she was gainfully employed. It was noted that she had already filed a civil suit for partition claiming her interest in the parental property. The Magistrate had declined to grant any interim order of residence which view was upheld by the ASJ in appeal. Hon’ble High Court in this fact situation referring to the fact that petitioner therein had never lived with respondent therein declined the relief holding that domestic relation between them neither existed nor existing. It held as under:-
“6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property.
However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship.
Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time’, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end”.
68. In Sonia Chauhan Raghove v. Sanjeev Raghove 2012(4) Crimes 59 (Del), similar questions were raised and it was held that domestic relationship continues so long as the parties are living under the same roof and enjoy living together in a shared household. It was further held that only “a compelled or temporary going out by aggrieved person” shall fall within the meaning of the phrase “at any point of time” for purposes of deciding as to whether the parties could be said to be in a domestic relationship. Similar view was taken by Hon’ble Delh High Court in Hima Chugh v. Pritam Ashok Sadaphule (2013) 4 SCC 73.
69. It has not come on record that the petitioner has a share in the residence in Delhi where mother, father, brother and bhabhi of the petitioner are living. It is true that petitioner and respondent many a time came to Delhi and stayed in the residence of parents of the petitioner and that mother, father and brother of the petitioner visited them in Mumbai but neither petitioner and respondent came to Delhi to live there permanently nor mother, father and brother of the petitioner ever visited them in Mumbai with intent to live there permanently or with a sense of permanence. Thus, respondent never lived under one roof in domestic relationship with mother, father, brother and bhabhi of the petitioner in shared household at any point of time. Therefore, respondent’s petition/application under 12, 18, 19, 20, 22 and 23 under PWDV Act, 2005 is not maintainable against them and consequently mother, father, brother and bhabhi of the petitioner, are hereby discharged and respondent’s aforesaid application/petition under PWDV Act is rejected qua mother, father, brother and bhabhi of the petitioner and with this their application for condoning the delay in filing their defense on record becomes infructuous.
70. With the discharge/rejection of the petition/application against mother, father, brother and bhabhi of the petitioner, respondent’s application under PWDV Act, 2005 remains only against the petitioner/husband. Respondent in her application/petition under
PWDV Act, 2005 has sought following reliefs:-
a).This Hon’ble Court may be pleased to hold that the respondents herein above have committed acts of Domestic Violence Act against the applicant;
b).That this Hon’ble Court may be pleased to grant the Applicant protection orders against the respondent No.1 selling, transferring or creating third party rights over the said flat situated at A1901/1902, Cosmic Heights Apts, Bhakti Park, Wadala East, Mumbai 400 037;
c).This Hon’ble Court be pleased to pass Protection Orders by appointing a any Protection Officer;
d).That this Hon’ble Court may be pleased to restrain the above named Respondents and their families, staff and acquaintances from entering the matrimonial house situated at A 1901/1902, Cosmic Heights, Bhakti Park, Wadala East Mumbai 400037;
e).This Hon’ble Court may be pleased to restrain the Respondents by an order of permanent injunction from disposing off/alienating or creating any form of third party rights with respect to any of the assets moveable and immoveable as enumerated in paragraphs herein above;
f).That this Hon’ble Court may be pleased to grant sole custody and, guardianship of her minor daughter Aahana;
g).That this Hon’ble Court may be pleased to grant maintenance towards the total educational expenses of the minor daughter;
h).That this Hon’ble Court may be pleased to grant maintenance of Rs 1,91,200 lakhs per month towards the upkeep of the minor daughter and household expenses;
i). The Hon’ble Court direct the petitioner to provide a car and a driver;
j).That this Hon’ble Court may be pleased to direct the Respondent No.1 to continue to pay the EMI’s towards the said loan as per the mortgage agreement;
k).That this Hon’ble Court may be pleased to direct the Respondent No. 1 to pay the society maintenance outgoings of the matrimonial house situated at A 1901/1902 Cosmic Heights, Bhakti Park. Wadala East Mumbai 400037;
l).The Hon’ble Court be pleased to direct the Petitioner to produce the Conveyance Deed of the said land purchased by him at Vatika India Next, sector 82-A Near 42 km Toll plaza NH-8 Gurugram 122004, Haryana, India Plot No;- d/300/085;
m).That this Hon’ble Court may be pleased to grant the Respondent protection orders against the petitioner selling , transferring or creating any third party rights over the said property situated at Vatika India Next, Sector 82-A Near 42 km Toll plaza NH-8 Gurugram 122004, m. Haryana, India Plot No;- d/300/085;
n).That this Hon’ble Court may be pleased to direct the Respondents to return the stridhan and personal belongings of the Applicant as per the list annexed herein above;
o).That this Hon’ble Court may be pleased to grant costs of Rs Two lakhs at present towards litigation expenses;
p).That this Hon’ble Court may be pleased to hold the Respondent No.1 liable for the crime of Perjury;
q).This Hon’ble Court may be pleased to grant an amount of Rs.3 crores as and by way of compensation to the Applicant for the acts of domestic violence perpetrated upon the Applicant;
r).Interim and ad-interim reliefs in terms of prayer clause (a) to (p);
71. Many of the prayers claimed herein above have already been thrashed out as independent issues and many of them have become infructuous owing to change in circumstance. Reliefs claimed in para b), d), e), j) and k) have become infurctuous in view of consent terms agreed between the parties before the Hon’ble Supreme Court and issue being sub-judice before the Hon’ble Supreme Court. Releif in para c) has also become infrutuous. Independent issues have already been framed qua relief claimed in para f) regarding custody and reliefs claimed in para g), h) and i) qua maintenance, car and driver. Similarly, with respect to prayer made in para l) and m) qua property at Gurugram and prayer in para n) qua return of her stridhan/articles also independent issues have been framed. Hence, only relief qua compensation and litigation expenses remains to be adjudicated separately for the petition/application under PWDV Act, 2005.
72. For the purpose of application/petition under PWDV Act, 2005, it is necessary to find out if respondent has been successful in proving domestic violence allegedly committed by petitioner husband. There is no dispute that parties lived under one roof in domestic relation in a shared household in Mumbai after marriage till 07.08.2016 and they are related by marriage. Hence, two ingredients for the application of provisions of PWDV Act, 2005 are met out.
73. Number of acts of violence have been alleged/cited to support the allegation that she suffered domestic violence at the hands of petitioner and his family members, however, since family members have been discharged of allegation of domestic violence as they were not found to be in domestic relationship with respondent, hence, here only specific allegations against the petitioner shall be considered for the purpose of ascertaining the commission of domestic violence by petitioner against respondent.
74. Respondent alleged that in June, 201 petitioner and she had traveled to Delhi to attend petitioner’s cousin’s second marriage and during that time when she demanded her jewelery kept in locker in Delhi, petitioner and his family blatantly refused to give her jewelery and physically assaulted her. Here, only allegation of physical assault is being taken into consideration. Allegation obviously has been denied by the petitioner. The allegation is very general and it lacks specification with respect to specific persons, timings, manner. Hence, same does not inspire confidence of the court in believing the same.
75. Her other complaints that within 15 days of the marriage father of the petitioner complained that she had brought less dowry and on his insistence that she had brought less money for furniture, she brought sum of Rs. 1.5 lacs from her mother. She was told that her husband had taken the Rs. 1.5 lacs from her and had placed this amount on a fixed deposit, however, a year later she got to know that her husband had lied to her and given that Rs. 1.5 lakh to his father immediately after the wedding even before coming to Mumabi and it was not placed on a fixed deposit. She felt cheated and hurt for breach of trust by the petitioner. Petitioner has denied the same.
76. Pleading and understanding of the respondent suffers from inconsistency. On the one hand she complains that on the insistence of her father-in-law she brought sum of Rs. 1.5. lakhs and on the other hand she claims that she was told that her husband had taken the Rs. 1.5. lakh from her and placed the said amount in fixed deposit. If the amount was brought at the insistence of her father-inlaw then said amount must have been delivered to her father-in-law whereas she claim that she was told that her husband had taken the Rs. 1.5 from her (from whom ?). Use of expression “she was told” shows lack of her personal knowledge. If it was taken from her then it is not understandable why she used the expression “she was told”.
Further, she claims that petitioner had lied and given the said amount to his father and was not placed in fixed deposit for her benefit. If some one would want money why would he allow to keep the money for her benefit. Dowry, a social evil, is demanded for the use and consumption by husband and his relatives and not for the wife even though it is demanded in her name for her. In the present case it is not her case that dowry were demanded for her benefit, hence, if at all she had brought the additional sum of Rs. 1.5 lacs for furniture why she was expecting that same would be kept in her name for her benefit and felt cheated when she came to know that said amount was given to her father-in-law and how this would amount to total breach of her trust. Had this amount been asked for her benefit and then she had brought it for her benefit under the impression pursuant to assurance from her in-laws that said amount would be applied for her benefit, there would have been reason for her to feel cheated or her trust broken. From all these, it appears that incident narrated by her is either fabricated or result of some misunderstanding.
77. Similar to this is her allegation that petitioner’s family demanded a substantial dowry amounting to over 1.25 Crore. One fail to understand why at the first instance respondent and her family agree to marry in a so-called family of dowry mongers. Admittedly, as per respondent parties met through jeevansaathi.com in October 2010.
After initial communication between their respective families, parties briefly met for a coffee in October, 2010 and thereafter they communicated via Google Chat. In November 2010, her family members visited petitioner’s house in Delhi and at this time his family members demanded dowry amounting to over Rs. 1.25 Crore.
Thus, at the very initial stage family of the petitioner shown their true color, if respondent’s submission is to be believed. Respondent and her family had ample time to refuse this marriage and were not at all constrained to accept their demand. It is not her case that she was suffering from any deficiency or was mad in love with the petitioner or her family had moved so far ahead that it was not possible for them to take U turn. In other words, there was no compulsion for the respondent and her family members to agree to their demand. Further, it is not her case that on the demand of dowry some negotiation took place and petitioner’s family agreed to a lower amount. Going by respondent’s pleading they demanded dowry amounting to over Rs. 1.25 Crore and her family agreed to the same.
This show that even family of the respondent accepted the alleged demand as normal matrimonial deal, otherwise they would have protested or refused to agree to marry their daughter. At the time of marriage, respondent was Manager in Axis bank so she was independent, educated, empowered and free to not give her consent to the same or asked her family not to accept such demand. Seen in this factual background when petitioner’s family had already shown their alleged true color before marriage, respondent and her family not being under any compulsion had ample opportunity and liberty to refuse to marry. However, once they did not do so, such act of the respondent and her family lead this court to believe that either allegation of dowry demand is motivated, fabricated and false or respondent and her family members are also party to offense or whatever was given to her was given voluntarily without any demand. In any case respondent’s version that dowry was demanded or his family were not happy and subjected her to alleged cruelty for dowry, do not inspire confidence of the court to believe the same.
78. Ld. Counsel for the respondent has relied upon recorded conversation Audio File No. 02 on the CD which is Ex. I in Ex 28, transcript of which is Ex PW1/R6B between petitioner and his friend Ritwik Bisaria and recorded conversation on CD marked “Dowry12” part of Ex.-I in Ex. 28, transcript of which is Ex PW1R6D between petitioner and respondent, to contend that same go to show that dowry was demanded and paid. He had argued that respondent had proved the said conversation because petitioner in his cross examination admitted that in Nov, 2014 he was recording his conversation with his friend Ritwik Bisaria, that he did not raise any objection qua veracity/genuineness etc. when said conversation on audio/transcript was filed on record and that he admitted that one of the voice was his. He had further submitted that petitioner during cross examination had also admitted that he had recored his conversation with petitioner and one of the voice was his. Hence, he contended that said transcript proved that petitioner and his family demanded dowry and they were paid dowry.
79. Contention of the counsel for respondent is not sustainable firstly because said recordings have not been proved on record as per law. Secondly, it is not the case of the respondent that conversation between the petitioner and his friend was recorded by the respondent herself or by any person deputed by her or it got recorded in any system with or without active participation of human agency.
Thirdly, petitioner did not admit that relied upon conversation was recorded by him either in his own phone or elsewhere. Fourthly, respondent did not depose anything about the source from where she got the said recording, even if it was allegedly recorded by the petitioner. Fifthly and more importantly in the said conversation/transcript Ex PW1/R6B petitioner’s friend expressing his concern about the way petitioner responded to respondent’s repeated use of expression “we have given dowry” in her conversation with petitioner and his friend found him somehow accepting the same. The conversation between him and his friend, even if accepted, at best is an interpretation by his friend about the way conversation between petitioner and respondent could possibly be understood in general.
80. As far as conversation recorded between the petitioner and respondent transcript of which is Ex PW1/R6D, is concern, same rather give dent to her case. It is her pleaded case that Rs. 10 lac in cash was given in Roka and Rs. 40 in cash was delivered in the morning of the day of her marriage in the house of the petitioner and thus as per her pleaded case Rs. 50 lacs cash was given but in the conversation she is heard/read saying- “mere ghar per ped pe paisa nahi lag raha 28 lac rupaye aise cash diya tha uske bad bhi dhai lakh rupaye aur diye. money is not growing on tree at my home, Rs. 28 lacs was given in cash, afterwards another Rs. 2.5 lac was given”. If this is believed then her pleaded case that Rs. 50 lacs was given in cash goes because here in this conversation she claims given amount to be Rs. 28 lacs and Rs. 2.5 lacs and not Rs. 50 lacs in cash.
81. Further, in this very conversation petitioner is heard/read saying after her aforesaid statement that “Aisa hai itni dikkat thi na shadi ke smay botlte. Aisa kuch nahi hai ke shaadi ke smay kuchh agree hua tha aur uske baad zabardasti tumko dowry ke liye harass kia gaya hai kuchh kia gaya. If you had so much problem you should have spoken at the time of marriage. It is not the case that something was agreed at the time of marriage and later you were forced for dowry or you were harassed or something was done to you”. In response she is heard/read saying “Kuch cheez dene mein bhi nahi harass karna chahiya tha. Ab kyun dhai lakh mere se bina puche kyu paise diye appne. Ye saare issue crop up toh isike ho rahe hain na ke mujhse bina puche paise diye aapne. One should not be harassed for giving something. Why did you give Rs. 2.5 without asking me. This issue cropped up because you gave money without asking me”. In this response she remained silent about the claim of the petitioner that she was not harassed for dowry. Her complaint about harassment in this statement was to the effect that petitioner had given Rs. 2.5 lakhs without asking her. It is not clear whether he gave his or her Rs. 2.5 lacs. In any case recorded conversation between petitioner and respondent even if taken into consideration does not help the respondent to further her case, but on the contrary go to deal fatal dent to her own pleaded case. Thus, respondent has failed to prove that there was any dowry demand and consequent harassment, torture, taunt, physical abuse or assault for dowry either by the petitioner or his family members.
82. With respect to allegations causing physical assaults and verbal abuses on multiple occasions by petitioner, Ld. Counsel for the respondent submitted that she duly proved the incidents of assault cited by her in pleadings by testifying the same in her evidence and petitioner was not able to dislodge or cast doubt on the testimony of the respondent in this regard despite the opportunity to cross examine the respondent at length on the issue. He contended that the series of complaints lodged by the respondent due to the abuse and violence inflicted on her by the petitioner were further testament to the fact that the petitioner did in fact repeatedly physically and verbally abused and assaulted the respondent and same was duly substantiated by the documents Ex. RW1/9 (FIR in Narwana, Jind); Ex. RW1/10 (her request letter to provide blood sample test); Ex. RW1/13 (police complains and stamped medical documents); Ex. RW1/14 (photographs of respondent showing bruises); Ex. RW1/P45 (NC dt. 15.05.2016 by respondent) and Ex.RW1/P46 (NC dt. 07.08.2016 by respondent). He drew attention of the court to certain portion of cross examination of the petitioner in this regard to support his contention. Further, he relied upon Ex RW1/3 (which are inter-alia police complaint and corresponding medical reports from Sion Government Hospital regarding injuries suffered by her during physical assault perpetrated by the petitioner on the respondent on 18.04.2018 and 19.04.2018. He contend that said reports unequivocally evidence and record the injuries suffered by the respondent at the hands of the petitioner. He also relied upon photographs Ex RW1/14. He has also relied upon recorded conversation Ex PW1/R6G between petitioner and respondent to say that his word would itself prove that he was accustomed to physically assaulting the respondent.
83. Per contra Ld. Counsel for the respondent contended that respondent had failed to produce any witness(es), medical examination report, photographs/videos, or other evidence to support her claim that the petitioner used to physically assault her on numerous occasions. He submitted that in addition to alleging physical assault against the petitioner in her DV Petition and complaint under Section 498A of the Indian Penal Code, 1860, respondent had filed criminal complaints with Mumbai police on 15.05.2016 and 07.08.2016, against which no FIR was ever filed. He contended that even if it was admitted for the sake of argument that the petitioner physically assaulted the respondent on several occasions, the respondent, a person of means, could have left the matrimonial household but she continued to live with the petitioner and her minor daughter. He referred to video recordings of 25.03.2016 Ex. RW1/P50 and 10.04.2016 Ex. RW1/P51, where, he argued, it could be seen that the respondent was happy and comfortable around the petitioner. He further contended that respondent had annexed some photos Ex RW1/13 and Ex RW1/14 allegedly showing injuries inflicted upon her during the intervening night of 18.04.2018 and 19.04.2018, he submitted that respondent did not mention anything about the said photos in her evidence by way of affidavit due to an objection raised by the petitioner while respondent was tendering these Exhibits, nevertheless, petitioner annexed videos, CCTV footage and photographs of 19.04.2018 Ex. RW1/P62, RW1/P63, RW1/P64 and RW1/P65, which belies any claim of any injuries on respondent’s face. He further submitted that besides, on 19.04.2018, respondent went to the Police station multiple times and herself called the police too, however, for reasons best known to her/police, she was never sent for any medico legal examination. Rather, an FIR bearing no. 135 under Sections 188 & 341 of the Indian Penal Code, 1860, was registered against her. Hence, he submitted that all the allegation of the petitioner about physical and verbal abuse was just an afterthought as counter-blast to petitioner’s petition.
84. Qua physical and verbal abuse the material on record is statement versus statement. Both parties have got to be given equal weight to their pleadings and testimony. However, before finding out as to whether or not there were physical or verbal assault on the respondent, it has to be borne in mind that there is no dispute that parties have physically separated w.e.f 07.08.216 and since then they have not been living under one roof, that is to say respondent cannot be said to be in domestic relationship with petitioner in a shared household w.e.f 07.08.2016. Hence, any alleged physical assault (on 18.04.2018 and 19.04.2018) by petitioner after domestic relation came to an end would not come under the definition of domestic violence, such an offense, if any, would amount to an independent offense under IPC. Hence, respondent’s attempt to bring within its sweep alleged act of violence within domestic violence has got to be rejected.
85. As noted above evidence about physical assault etc. of the respondent is only oral. Here the principle that testimony of victim/injured be accorded special status will not apply in this case particular when alleged physical assault is not accompanied with visible injuries. Admittedly, till separation of the parties nothing has come on record to suggest that she ever sustained injuries though many times she alleged that she was assaulted by petitioner and his family members. Physical assault by more than one person definitely bring out some swelling, mark, contuse etc. Respondent did not choose to get herself examined by doctor on any of the occasion lends doubt to her claim that she was physically assaulted.
86. Further, respondent is a working woman well equipped with knowledge to take assistance of law but did not take recourse to law on any of the earlier occasion. When for the first time she thought to report matter to the police, she got it done at Narwana through her maternal uncle though she was no way under restrain or prevention to approach the police in Mumbai. Her this step of getting FIR lodged at Narwana, Jind while living in Mumbai shows more an attempt on her part to harass petitioner and his family members than to get justice for her alleged sufferings. Nowhere in her pleading or evidence she explained why she chose her uncle to make complaint on her behalf in Narwana even though both husband and wife were living together in Mumbai under one roof and respondent was attending her job in Axis bank.
87. Further more, in the complaint dt. 28.04.2016 Ex PW1/36 (which led to registration of FIR in Narwana Jind) respondent’s uncles had alleged that on 09.04.2016 petitioner came drunk and vomiting at about 12 midnight and started abusing him and when he protested petitioner attempted to lift him out of corridor to throw him out of window of 19th floor and he (uncle) somehow managed to free himself otherwise petitioner would have killed him by throwing him off the 19th floor. In the entire WS or petition under PWDV Act or in her evidence, there is no mention about respondent’s uncle visit to Mumbai in April 2016 nor is there any mention that petitioner was in Narwana on 09.04.2016, yet respondent’s uncle went on to allege in writing in the complaint dt. 28.04.2016 Ex PW1/26 that petitioner attempted to throw him off the 19th floor. This part of allegation of his complaint was blatant lie which cast very serious doubt in the allegations of physical violence by the petitioner (in particular) and his family members (in general) against her and her uncle. Further, interesting is the fact that respondent herself had alleged the same incident for herself on the same day and same time. How was it possible that petitioner at the same day and time was in Narwana attempting to throw her uncle off the 19th floor and was also making same attempt with respondent in Mumbai on the same day and time? And if both her uncle and respondent were in Mumbai on the same day and time then, if allegation is believed, petitioner was attempting to do the same thing with both of them simultaneously which allegation was not reconcilable as neither respondent nor her uncle alleged that petitioner was doing the said alleged attempt with both of them simultaneously either at Narwana or in Mumbai. It was a concocted allegation which both respondent and her uncle could not reconcile properly resulting into exposer. In the circumstances it is not safe to believe respondent’s allegation of physical abuse.
88. One more factor that has added to serious doubt about the entire case of the respondent of harassment and assault over dowry demand etc.
is the inclusion of the name of Preeti Jain, the wife of brother of the petitioner. Both in the FIR and petition under PWDV Act, Ms. Preeti Jain has been made accused and respondent respectively. Only allegation against her is to effect that when respondent’s family member visited house of the petitioner in Delhi in November 2010, his father, mother, brother and brother’s wife demanded a substantial dowry amounting to over Rs. 1.25 cores. Second allegation against Preeti Jain is to the effect that respondent’s family members were compelled to entrust jewelery worth Rs. 30 lacs and silverwares etc.
worth Rs. 10 lacs in the care and custody of the petitioner’s mother, brother and brother’s wife. Apart from this two vague allegations against Preeti Jain no specific role has been assigned to her in any of the alleged acts of domestic violence, though it can be contended that her name be deemed included wherever respondent had used word “petitioner and his family”.
89. One thing this court failed to understand is the fact that Preeti Jain is another daughter-in-law of the petitioner’s family and she too has only two daughters, if petitioner’s parent and his other family members were greedy person or dowry mongers or were not happy with birth of girl child as claimed by the respondent they would be so even for their another daughter-in-law Preeti Jain, because basic nature, habit, liking and greed remains constant. If parents of the Preeti Jain were poor she would have also gone through same ordeal for dowry/daughter as claimed by the respondent. It is not the case of the respondent that parents of the Preeti Jain were very rich and they had gagged the greed of the parents of the petitioner by giving heavy dowry and by making arrangement of regular flow of money/gifts etc. from parents of Preeti Jain to parents of the petitioner or that parents of Preeti Jain were so powerful that petitioner and his other family members dared not to harass her. Respondent should have thrown some light as to why Preeti Jain was not treated the way she was treated by parents of the petitioner or why Preeti Jain would pulled her up when she (Preeti) herself was facing the same ordeal, given that greedy person or dowry monger remains so forever. In any case Preeti Jain would have been sailing in the same boat as that of the respondent, if petitioner and his family members had been the way they have been portrayed by the respondent here yet respondent and her uncle did not spare Preeti Jain. She was named in FIR and was also made respondent in the petition under PWDV Act, even though Preeti Jain never lived in domestic relation with respondent in a shared household. Inclusion of her name in the complaint smacks of malafide intent in the entire allegation of domestic violence. As noted above, only material available for adjudication of allegation of domestic violence was word against word and therefore only statement of those would be believed whose word is found to be not polluting the stream of justice and whose word is found to be free of any twist, fabrication and manipulation. Particularly for this reason her allegation that brother of the petitioner tried to forced himself upon her on 24.08.2014 when she was breastfeeding the child, is also not believable particularly when she is found admitting that she was not alone in the house and her fufaji, mother and a cousin Sachin had visited her on the same very day. Given that it was not possible for petitioner and his family members to put her under threat not to disclose the alleged incident to her mother. It was also admitted by her that on that day she had gone to her Buaji. If such an incident had happened and petitioner and family members had threatened her from disclosing this to any one, then they would not have let her go to her Buaji house for fear that lest she should disclose such incident to any other person given the state of relation every one had at that time. The incident appears concocted and not believable. Hence, respondent cannot be trusted so far as her allegation of domestic violence is concerned and therefore issue No. 11 is decided against the respondent.
Issue No. 3. Whether the petitioner is entitled to get permanent custody of the child named as Aahana?
Issue No. 4. Who is entitled to get the permanent custody of the child “Aahana”?
90. Both issues are taken up together as they are interlinked. There is no dispute that parties were blessed with one girl child named above on 18.06.2014. Hence, there is no dispute that petitioner and respondent are her biological and legitimate parents. There is no dispute that parties are living separately w.e.f 07.08.2016 following dispute leading to complaints at Wadala Police Station, Mumbai. Under the circumstance and because of the complaint of the respondent to police, petitioner was not allowed to enter his own residence or live together. Petitioner, thus, did not leave the matrimonial house on his own. Respondent was not willing to let petitioner come in and reside in his own house is also clear from the application (Ex.14) filed by the respondent in the present case seeking restrain order against him to enter the house. Admittedly, minor child remained with respondent w.e.f. 07.08.2016 on which day the minor child was only 2 years 1 month and 19/20 days old.
91. Respondent in her written statement as well as in her petition under PWDV Act, did not make any allegation against the petitioner qua the daughter to the effect that he was not happy with the birth of daughter (though such allegation is there against his mother) or that he was cruel/irresponsible towards the child. Her only allegation was that his conduct of violence against her made her fear for her safety and that of her daughter and that he had called names in front of the child. In the pleadings though there are numerous allegations directed against the petitioner to portray him the worst husband but not bad father (at least till the stage of the pleadings). Similarly, petitioner also did not make allegation against the respondent about she being bad mother qua the child though she is alleged to have separated the child from father and his family.
92. Thus, up to the stage of pleadings, none claimed against each other that one or other is bad for the child. Nevertheless, petitioner was not offered to meet the child and when petitioner filed first application seeking visitation/access to the child on her birthday, respondent for the first time in her reply alleged that child was traumatized by the acts of the petitioner which plea was hardly believable cause child of two and one month 19/20 days old would not have been able to remember face of the man who allegedly did violence to her mother in front of her and that too after a gap of almost one year. Be that as it may, the Family Court, Bandra too did not believe in the submission and vide order dt. 07.06.2017 directed respondent to give birthday access of minor daughter to the petitioner on 18.06.2017 in the vicinity of garden of their residential building or any other place mutually decided by them for two hours between 10:00 AM to 12:00 A.M. for the celebration of birth day of the child.
Despite that respondent did not provide access on that day as is clear from the reply of the counsel for the respondent wherein she claimed that respondent was not aware of the order and that it was well within his knowledge that she was traveling on that day. Plea of traveling was not accepted by the court in its order dt 07.06.2017 and it is not believable that respondent was not aware of the order as it was her duty to know what order was passed on the application which she had opposed. Hence, her act of not providing access on the plea of traveling, which pleas was considered and reject by the court, not only reflected her desire to not let petitioner meet his daughter but also showed her determination to achieve that objective even if it meant flouting court order.
93. With these started the real tug of war between the petitioner and respondent over the custody of the child. It is in this fight for the custody/visitation of the child that parties have more followed the Hindi idiom “Tu dal dal, mai pat pat”. After the pleadings of the parties as noted above, all subsequent act/conduct/incident of the parties have been pleaded by the parties in their respective affidavits filed in examination-in-chief to make out case for the custody in their respective favour. In substance, case of the respondent is that on account of the act and conduct of the petitioner in accessing the child against her wish and willingness, child became very much scared of meeting and seeing the petitioner. On the other hand in nutshell case of the petitioner is that respondent’s non-willingness to allow access to the child and her subsequent effort to not let him have one to one meeting with child for sufficient duration deteriorated bond with the child though child get whenever respondent was not around child and mixed with him freely. Both have cited instances and materials to support their version.
94. No fruitful purpose would be served to discuss those material as despite all bitterness between the parties there is no denial from each other that none of them are harmful to the child. Respondent has also over all these years realised that it is good for the child to have bonding with her father even though respondent has grievance with some acts of the petitioner after filling of the petition, which act she feel was taken by the petitioner against the interest of the child.
However, she feel helpless and thinks that if sufficient space (time and distance) is granted and respondent wait for some time without making any attempt, child may get comfortable and get back to him.
Petitioner doubt the intention of the respondent and more so because he thinks that any more time away from the child would help respondent achieve her goal of alienation as he found that whenever mother was not around child was very comfortable and knowing this she always insisted to be around the child which caused child to show disinclination. He is hopeful that if sufficient access and sufficient unsupervised time is given, child will take seconds to get close to him as well. About the alleged act against the interest of the child he countered the same submitting that he never acted against the interest of the child and the legal steps he bonefidely took to enforce his legal right could not be termed as taken against the interest of the child.
95. After conclusion of the final argument on 01.09.2023, at the request of the parties, this court inter-acted with the child twice for almost one hour each in the presence of both parties (waiting outside chamber). The child is sharp and intelligent but not farsighted enough to understand the loss/advantage caused by the absence/presence of father/mother in life and like any other child she also goes by the same principle for determination of right and wrong based on service of her interest. The child expressed that she was scared of her father. She was shown some photographs and video where she was in happy company of her father but she parried the same saying she did not remember, however, she acknowledged that it was she with her father. On asking as to why she was scared of him she submitted that once he had called police to her mother’s place and secondly he keep coming over to play ground to interact with her which caused her friends to make fun of her and thirdly he stalked her meaning he followed her. When asked as to whether her father ever caused any harm to her, she cited one example where he was pulling her off the mother which hurt her. The pulling off incident occurred as petitioner was trying to get access of the child unsupervised but respondent was not wiling to let her the child go probably child was crying (both petitioner and respondent has different version for the reason of crying of the child.) But on reasoning of this court that her father might be doing all this to meet her, see her and make her feel that he was around to encourage her, she seemed to agree but kept mum which indicated to this court that probably she feared that if she meet her father same may not be liked by her mother or her mother’s mother with whom she has been living.
96. To this court child’s present state of mind appears result of passive and indirect tutoring coupled with misunderstanding about the attempt of her father to get close to her. Passive and indirect tutoring takes place whenever there is constant ill talk about the noncustodial parent in the house where child is residing. The custodial parent may not be intending so but it happens as byproduct. For example when custodial mother after attending court hearing and returns home weeping the child starts gradually realising that noncustodial parent is not good. Though custodial parents might not have said anything specifically to the child but child notes it which create aversion in the child against the non-custodial parents.
Similarly, when there is discussion in the house during which obviously nothing good can be said about the non-custodial parents, child unwillingly hears those things and starts feeling aggrieved.
Number of instances can be cited and contemplated where passive and indirect tutoring take place even without the knowledge and willingness of the custodial parent.
97. Be that as it may, as of now custody of the child cannot be changed, though the role of the father in the life of the child need not be underlined as a lot has been said and written about the role of each parents in the life of the child. Some great effort is required to be made both by petitioner and respondent to get the child develop bonding with her father. This is not possible unless respondent make more effort in this regard, but given the current level of bitterness between the parties, respondent may not be able to deliver as per the expectation of the petitioner in this regard. Hence, involvement of some independent agency is required.
98. This court is of the opinion that the help of child clinical psychologist will play decisive role in removing the unfounded fear in the mind of the child both against her father as well as her fear, as this courts think, that if she agrees to meet her father same may not be liked by her mother. Hence, child psychologist is needed to be appointed with goal to remove the fear in the mind of the child, ensure frequent mixing of the child with her father, making her realise the role of her father in life and to facilitate spending greater time with father during vacation, tour etc. including overnight stay.
Both petitioner and respondent shall continue to be her guardian for all school, academic and extra curricular purpose and respondent would get petitioner’s name included in the child’s school record within 30 days of this judgment by writing to the Shiv Nadar School failing which petitioner can approach the school based on this judgement to get his name added and access to all academic and extra curricular information of the child. School authorities would comply with same. Thus, issue No. 3 and 4 are decided accordingly.
Issue No. 5:- Whether the Respondent is entitled to get maintenance towards educational expenses, upkeep for the daughter-Aahana, from the Petitioner, as claimed?
99. Although from the manner in which issue No.5 has been framed it appears that petitioner has denied to grant maintenance for the daughter. Ld. Counsel for the petitioner has drawn attention of the court to the interim application of the respondent for maintenance to claim that petitioner never shied away from bearing the responsibility of the child and he has always been ready to bear the legitimate expense incurred on the child. Respondent in her interim maintenance has herself pleaded that since June 2016 petitioner stopped contributing towards the monthly expenses and since then she was finding it impossible rather difficult for her to cope up with their minor daughter expenditure and other household monthly expenditure which were solely borne by the petitioner. As per her own submission at least till June 2016 respondent never faced financial trouble from the petitioner. Be that as it may, it is an admitted position of the parties that since marriage till today both are working for gain earning. In the situation where both mother and father are earning they have to contribute jointly to the reasonable expenses of the child in proportion to their earning. Hence, above issue should have been framed as to what amount petitioner is needed to contribute for child education expenses etc.
100. In 2016 respondent had claimed Rs. 1,91,200/- per month towards the expenses of the minor child along with monthly expenses of the house and that of the respondent, had asked for a car and driver, direction to pay school fees when child get admitted in the school direction for continuous payment of his EMI of the loan for flat in Mumbai and litigation expense of Rs. 2,00,000/-.
101. The Family Court, Bandra vide its order dt. 13.10.2017 after analyzing respective income and expenditure of the parties, directed the petitioner to pay Rs. 40,000/- per month to the respondent for the interim maintenance of the child from the date of application till the disposal of the petition. Qua school fees it granted liberty to file separate application when situation arose. It rejected the prayer for car and driver. It is worthwhile to note here that vide order dt. 07.06.2017, the Family Court, Bandra had already directed the petitioner to bear 40% of the school fee of JBCN School (a costlier school) where child was admitted as per the choice of the respondent in preference to very less costly school Arya Vidya Mandir which was initially shortlisted by the respondent but later preferred 7/8 times costly school JBCN. Parties had difficult time in getting the child admitted to school in Mumbai and only with court intervention her admission was possible though both were willing to provide the best life, education and facilities to the child.
102. Another turbulence came when respondent shifted to Gurugram in December 2018 without any intimation to petitioner, though parties were at loggerhead before High Court for her admission in another school in the upcoming session of 2019-20. As per respondent she was transferred by bank to Delhi on short notice and therefore she had to move to Delhi/Gurugram though she claimed proper intimation was given whereas petitioner has been trying to prove that respondent mischievously got herself transferred to Delhi/Gurugram and despite having sufficient time in her hand she neither took permission of the court nor did she inform him before moving the child out of the jurisdiction of the Mumbai. He bonefidely believes that such move was made by the respondent to alienate the child from him as despite number of visitation granted by the court visitation was not happening smoothly or beneficially and with a view to resist the respondent from going ahead with her intent to alienate the child, he took various legal steps which respondent had been citing that he was acting against the interest of the child.
103. Be that as it may, with her shifting to Gurugram arose problem with respect to admission of the child in a school in Gurugram. Parties were again at logger head, petitioner opposition has been cited as his act against the interest of the child whereas petitioner was feeling clean bowled qua his daughter with he in Mumbai and daughter in Gurugram with respondent/mother who, he thought, was hell bent on alienating the child from him. Somehow the child got admitted in School in Gurugram but respondent ensured that petitioner did not get access to any academic, cultural and other information of the child from school by not including his name in the school admission form/record.
104. Record show that after shifting to Gurugram, respondent herein had filed an application for direction to the petitioner to bear the entire school fees of the child in the changed circumstance but said application was dismissed by the Family Court, Bandra vide its order dt.15.01.2021. Stung by separation of the child from his eyes, petitioner also shifted to Gurugram and took on rent a flat in the same society where respondent is currently residing in her self purchased flat. Respondent took this action of the petitioner as an attempt on his part to make hell her life and that of her child.
Respondent has further alleged that petitioner did not pay the 40% of the school fee of the Gurugram School, whereas contention of the petitioner is to the effect that direction to pay 40% of the school fee was for JCBN only because order used the expression “till such time, that child complete her education in this school”, though he has been continuously paying Rs. 40,000/- for child’s maintenance.
Subsequently, as noted above Hon’ble Supreme Court transferred the present matter to the Family Court, Patiala House, New Delhi.
105. It has come in evidence in the testimony of petitioner that his current gross monthly income is Rs. 4.1 lakh and net take home is around Rs. 2.9 lakhs. At the asking of counsel for respondent he filed his cumulative payslips Ex PW1/R3 (colly), appraisal letter Ex PW1/R4 effective from 01.04.2021 and appraisal letter Ex PW1/R5 effective from 01.04.2022.
106. Respondent in her cross examination has admitted that her salary is Rs. 2.9 lakhs in hand and when she had joined CITI Bank N.A in March 2022 her CTC was Rs. 45 lakh per annum. She admitted she had amount in mutual fund, Fixed deposit (flexi account) and D-mat account. She admitted she had 3-4 credit cards, number of bank account and two houses. She denied her current CTC to be Rs. 55 lakhs per annum but volunteered that her current CTC was Rs. 50 lacs per annum but not certain.
107. Ld. Counsel for respondent contended that respondent single handedly bearing all the expenses of the child whereas petitioner had been contributing meager sum of Rs. 40,000/- per month for child’s maintenance and after 2018 petitioner refused to pay 40% of the school fee on frivolous ground that he was liable to pay 40% of the school fee of JCBN school only. He further submitted that direction to pay 40% of school fee was passed in the background of the fact that respondent was opting for costly school but with transfer from Mumbai to Gurugram child has come in less costly school and therefore, petitioner should bear all the expenses of the school fee.
He further contended that maintenance of Rs. 40,000/- was fixed in 2016 when his salary was around Rs. 2,00,000/- per month but by now his salary as per his own admission has become Rs. 4.1 lacs, therefore, maintenance of the daughter was also required to be increased in same proportion. He further submitted that when both parents are working and child is staying with mother, then division of expenses on the child is not to be divided equally as mother being the primary care giver put in physical and emotional labour in upbringing the child and therefore non custodial parent is required to pay more than the custodial parent. He further contended that petitioner had been successful in showing less monthly income as he was presently working in his friend’s company and its not difficult for him to get manipulated salary slip showing less salary. He further submitted that respondent at present was spending Rs. 1,74,100/- per month on the child and the break up of those expenses was given by her by way of her separate affidavit filed on 11.08.2023. Ld. Counsel for the respondent has certain more contention but same are not pleaded case of the parties – like respondent had taken loan of Rs. 90 lacs from her mother, she was paying EMI for her Gurugram flat besides EMI for Mumbai flat etc. or that she had placed on record allotment letter of the plot owned by the petitioner in Gurugram. Ld. Counsel for respondent concluded submitting that respondent be directed to pay/bear entire expenses of the child.
108. Ld. Counsel for petitioner contended that respondent did not make mention of maintenance towards educational expenses and upkeep of the minor daughter, Aahaan, in her pleadings, though prayer was there. No separate application for permanent maintenance or education expenses for the minor daughter was filed besides making prayer in the WS. After conclusion of trial, she filed an affidavit detailing the minor daughter’s monthly expenses only on 11.08.2023 which could not be considered at this stage as petitioner was not given any opportunity to cross examine her regarding the said affidavit. He contended that said affidavit was deliberately filed at a belated stage as she knew that she had not filed any application or averred anything with regard to her minor daughter’s maintenance in her pleadings.
109. He further contended that the Family Court, Bandra had already dealt with an application of the respondent seeking interim maintenance for the minor daughter wherein Rs. 1,91,200/- was sought towards the maintenance of the minor daughter. The Family Court, Bandra, after analyzing respective income/expenditure and requirement of the child, passed order dated 13.10.2017 whereby petitioner was directed to pay 50% (Rs.40,000/-) of the daily expenses of the minor daughter apart from his liability to pay 40% of the school fees towards the JBCN school as ordered vide order dated 07.06.2017.
He reiterated that 40% of the school fee was ordered only for JCBN School by stressing on words “this school” in the order. He further submitted that order dt. 13.10.2017 was challenged before the Hon’ble High Court of Bombay which confirmed the said order vide its order dt 13.04.2018. He drew attention of this court to specific observation of the Hon’ble High Court wherein it observed that demand made was an exaggerated projection of the day to day requirement for a child of 3 to 4 years and that whatever more than granted is required can be supplied by the earning mother. He contended that respondent was directed to pay from its own pockets, in the event day-to-day expenditure of the minor daughter went above. He submitted that petitioner had been paying the monthly expenses of Rs. 40,000/- (Rupees Forty Thousand Only) regularly without getting chance to spend time with daughter and without being able to take some decision for her.
110. He further contended that upon sudden relocation, respondent, without taking the petitioner’s consent, unilaterally enrolled the minor daughter in Shiv Nadar School, which was against the standing orders dt 27.08.2018, 27.08.2018. 10.09.2018 and 3.10.2018 of the Hon’ble High Court before whom parties had agreed to co-operate to get the child admitted in school in Mumbai in the upcoming academic session of 2019-20. She purposefully did not enter petitioner’s name in the “father of” column and thus misrepresented to the school that the minor daughter had only one parent. However, her application for direction to pay entire fee of the school in Gurrgram was dismissed by the Court vide its order dt. 15.01.2021.
111. He contended that petitioner had been paying the monthly interim maintenance of Rs. 40,000/- (Rupees Forty Thousand Only) for expenses (including education) of the daughter and was paying his share of the school’s tuition fees for JBCN school till the time daughter was studying in JBCN School, as directed by the Family Court, Bandra vide order dated 13.10.2017. Hon’ble Bombay High Court in its order dated 05.12.2018 noted that Rs 40,000/- maintenance for the minor daughter was awarded considering the education and other needs of the daughter.
112. He contended that as per claim of respondent, current school fee was Rs. 34,500/- and therefore, Rs. 17,250/- out of Rs. 40,000/- could be applied and remaining Rs. 22,750/- (Rupees Twenty-Two Thousand Seven Hundred and Fifty Only) could be applied in minor daughter’s day-to-day expenses. He contended that respondent was earning a ‘handsome amount of income’ with admission of the respondent to this effect and the same was observed by the Hon’ble High Court of Bombay in its order dated 13.04.2018. He contended that both are earning equally. Therefore, considering the high income of the respondent she could not demand that petitioner alone to pay an arbitrary amount of Rs. 1,74,100/- (Rupees One Lakh Seventy-Four Thousand One Hundred Only) towards the maintenance and upkeep of the minor daughter.
113. He further submitted that irrespective of petitioner’s case that respondent was earning more than petitioner, he was willing to contribute to 50% of all the genuine expenses of the daughter and Rs 40,000 currently paid by him actually covers much more than 50% of the day to day expenses as well as the current education expenses of the daughter. He further contended that respondent, though asked multiple times during her cross examination, no where disclosed details of the actual expenses incurred on the daughter and not produced any document to support, how she was spending Rs 80,000/- per month towards daughter’s day to day upkeep and education expenses. She was also not able to explain, how she spent a total of Rs 63.2 lakhs (so far given) exclusively on the daughter’s expenses in the last 7 years, over and above JBCN School fees. He further submitted that petitioner had been willing to bear 50% of the minor daughter’s expenses including her school fees, provided this court analyse the justified amount of expenditure that would be sufficient for both the petitioner and respondent to pay towards the minor daughter’s maintenance and upkeep. Petitioner had even included the minor daughter’s name in the medical insurance and separately opened a Sukanya and PPF account in the name of his minor daughter. He submitted that petitioner would continue to deposit certain amount in the said accounts of the minor daughter every year, with the sole intention to secure enough money for his minor daughter’s higher education. He further contended that petitioner had prayed for shared parenting, while dealing with Custody issue and therefore considering the above prays that this Hon’ble may direct the parties to bear 50% of education expenses payable directly to the school and 50% of the Extra curricular activities (like Soccer coaching, badminton coaching etc) payable directly to the provider by both the parties. Besides the School education and Extra curricular activities, miscellaneous day to day expenses for the daughter Aahana (Food, clothes, travel, toys, maid for Aahana etc) be borne by the parent, who was having parenting time and no amount needed to be transferred by either parent to the other party. 114. Having heard submissions of the counsel for parties and having considered there respective submissions, this court finds that petitioner has never shown any disinclination to share his responsibility towards the child. He has been continuously struggling to gain access to child but all his attempt has been thwarted initially by the respondent and later by piggy riding on the wish of the child.
Petitioner being unable to gain access to child was taking steps after steps which may look as if he was trying to obstruct the progress of the child. But the fact of the matter was that both respondent and petitioner in pursuit of their desire to have their way proved right harmed the daughter – respondent by not co-operating and encouraging the child to make her feel that she had no problem in her meeting with father deprived the child of her right to love and affection of her father; and petitioner by repeated attempts to get close to the child caused unfounded fear in her mind. Since respondent was in whole sole custody of the child in the last seven years, therefore, she could not go un-blamed for the present state of the child by not making the child at least have no fear of her father.
Her action in not including the name of petitioner in the Gurugram school record of the child show nothing but her desire to take the petitioner out of the life of the child and her explanation that as petitioner was opposing the admission of the child in Gurugram therefore she thought that petitioner was not interested in the welfare of the child, is just an after thought to put blame off her.
115. Be that as it may, petitioner has always been ready and willing to share the reasonable expenses of the child and his opposition is to the exaggerated demand of the petitioner and in this regard he relied upon the observation made both by the Family Court, Bandra and the Hon’ble High Court of Bombay. Observations of the Family Court, at Bandra and of the Hon’ble High Court are matter of record and such possibility cannot be ruled out when she filed her affidavit at the time of Final Argument on 11.08.2023 showing monthly expenditure on the child to be Rs. 1,74,100/- per month. Though one can spend even more amount a month on the child but question needed for consideration is whether such an amount would be reasonable even if parties are earning and having capacity to do so. Budgeting is an important element in every household which causes each party to prefer one expenditure over the other depending on the priories.
Further, how to spend money and on what head and too what extent is basically a individual choice in every strata of the society. A person even being in premium society may not be willing to undertake heavy expenditure on many heads of expenses based on his own principle he has grown up. Every man/woman though giving importance to education may not be willing to spend his or her entire income on the education of the child or extra-curricular activities, even if having sufficient income. Couple do have differences over the need to spent money on tuition, coaching, sports etc. One parent may feel that it is important to have private tutor at home, other may feel that it is not good to have private tuition rather child should go to group tuition. May be his or her such decision springing off from his/her desire to save money or may be he/she would be really believing that in group tuition child may develop sense of competition or something like that. Similarly, one parent may like to have the child go for football/cricket/badminton or other classes and other parent may, in his/her assessment, feel that child has no inclination or that such costly activity he/she cannot afford.
116. This does not pose any problem as long as parties are living together and resolving there issue amicably. Difficulty comes when Court is called upon to interfere in the financial freedom of the person to spend his/her money in a particular way as it directly interferes with fundamental right of the person to decide how his fruits of labour be spent. A child has right to maintenance but not to everything child wants, therefore, the child by piggybacking custodial parents cannot come to court to get from the non-custodial all that his/her custodial parents unilaterally decides to grant. It is true that child is entitled to live as per the living standard of his/her parents but it must be kept in mind that child get that standard of living because he/she has been living with them and most of the expenses are spent not specifically for him/her. While growing, every child should know that he or she is required to earn/learn, therefore, some sort of scarcity is always maintained to make the child feel the need of becoming capable of earning.
117. Although respondent did not lead any evidence regarding the actual expenses she had been incurring on the child and her attempt to file affidavit only during the course of final argument on 11.08.2023 shows her exasperation to get on to the missed bus, perusal of her affidavit shows that she claims to be spending Rs. 34,500/- towards the school fee, Rs. 8,00/- per month Uniform, books, stationery, Rs. 16,000/- on extra curricular activities like soccer, ballet etc., Rs. 2,000/- monthly towards library subscription, Rs. 1,500/- towards summer camp & additional activity, Rs. 5,000/- towards gifts and birthday parties, Rs. 10,000/- for shoes, clothes, toys etc., Rs. 25,000/- for child nanny, Rs. 7,100/- monthly for yearly expenses of Rs. 85,000/- on her birth day, Rs. 15,000/- monthly for yearly expense of Rs 1,80,000/- on holiday/vacations, Rs. 5,000/- for movies etc., Rs. 5,000/- medical expense, Rs. 15,000/- for food grocery, nutritious food, Rs. 17,000/- for purchase of iPad etc. and Rs. 8,000/- for transportation and fuel expenses to take the child to extra-curricular activities.
118. Out of these expenses on school (Rs. 34,500/-), stationery/uniforms (Rs. 8,000/-), shoes/clothes/toys (Rs.10,000/-), grocery/nutritious food (Rs.15,000/-), library charge (Rs. 2,000/-), medical expense (Rs.5,000/-) and leisure expense (Rs. 5000/-) without doubting the value can at best be termed as need of the child, rest all are want and luxury of the child about which decision should be taken jointly by the parties and if any one is not agreeing other can go ahead on his/her own if he/she can afford. Total of these amounts come to Rs. 79,500/- per month. If Rs. 16,000/- per month towards extra curricular activities is added then child’s monthly expenditure comes to Rs. 95,500/- per month. If Rs. 8,000/ per month towards transportation and fuel for taking the child for extra-curricular activity is also added then total comfortable monthly expenditure of the child would come to Rs. 1,03,500/- per month. Over and above this amount if respondent is spending any money same cannot be termed as child’s need or want but luxury. Luxury is matter of choice and court cannot be made party to the luxurious choice for the child falling within personal domain of the parties irrespective of income group a person belong to. The value as given by the respondent has been taken assuming them to be correct though some of them can be reduced as expense on uniform, shoes/medicine are not done every month. Hence, this reasonable expense of the child for her need and want would be around 90,000/- which shall be shared by both parents equally.
119. The principle that between earning couple non-custodial parent would bear extra burden as custodial parents put in extra physical and emotional labour in upbringing the child, is not applicable in the present case as in the present case petitioner has always been willing to have the custody of the child and share parenting responsibility but he was prevented from doing so.
120. Petitioner is already paying Rs. 40,000/- per month which is little over 50% of the reasonable monthly expenses (Rs. 79,500/-) of the child both for her education and maintenance and he is agreeable to bear 50% of all reasonable expense of the child. Hence, petitioner shall bear the 50% of the aforesaid reasonable expense of Rs. 90,000/- per month for child’s need and want and petitioner is accordingly hereby directed to pay 50% of the school fee directly to the school, 50% i.e. Rs. 8,000/- of the extra-curricular activity charges directly to the concerned service provider and remaining of 50% of Rs. 90,000/- directly to the respondent. Issue No.4 stands decided accordingly.
Issue No. 6 :- Whether respondent is entitled to get a car and driver, from the petitioner, as prayed?
121. Aforesaid prayer was rejected by the Family Court, Bandra vide its order dt 13.10.2017 and said prayer also stand rejected by the Hon’ble Bombay High Court vide its order dt 13.04.2018 when it confirmed the order dt 13.10.2017 of the Family Court at Bandra. No special reason has been pleaded or proved as to why respondent need a car and driver from the petitioner when she herself has been earning almost equal to what petitioner has been. Her current salary slip shows is she getting Rs. 86,150/- per month as Car entitlement.
Hence, issue No. 6 is decided against the respondent.
Issue No. 12:- What order and decree?
122. Since petitioner did not approach the court with clean hands he is found not entitled to prayer for grant of decree of divorce on the ground of cruelty as discussed above, hence his petition so far it relates to grant of divorce on the ground of cruelty is hereby dismissed.
123. Since respondent did not live in domestic relation with mother, father, brother and bhabhi of the petitioner in a shared household, her application/petition under PWDV Act is not maintainable against them and according same is rejected qua them.
124. Since respondent failed to prove domestic violence and alleged cruel treatment to her, her application under Section 12, 18, 19, 20, 22 and 23 of PWDV Act, 2005 against petitioner is also hereby dismissed so far as her relief for compensation for domestic violence and litigation expenses are concerned. With respect to all other reliefs issues were already framed separately and appropriate findings have already been recorded herein before. As she also failed to prove domestic violence and cruelty as alleged by her in her WS and petition under PWDV Act, her amended prayer for grant decree of divorce on the ground of cruelty is hereby dismissed.
125. So far as custody of the child Aahana is concerned as of now child will continue to remain in custody of the respondent and petitioner shall have visitation right everyday anytime after 7:00 PM but before 10:00 PM for one hour as both petitioner and respondent are living in the same society in Gurugram. Initially meeting will take place in the park or common place of the society whereafter depending upon relation petitioner will be at liberty take the child around including his residence and to his parents. Depending upon relation between him and the child, he will also have overnight custody on weekends (from Saturday 7 PM to Sunday 7 PM). As it is not possible to make provision for all her vacation/holidays, it is hereby directed that parties would take decision themselves keeping in mind that child spends her vacations/holidays including overnight stay with both parents equally and while arriving at consensus one or other must accommodate each other. While taking any decision qua sharing vacation and holidays, guiding principle for them would be to ensure that child spends equal time with both as far as possible. Respondent shall try not to be around the child at the time of visitation/meeting/vacation/holiday so that petitioner get to spend exclusive time with the child. Respondent shall make her conscious effort to remove the misconception from the mind of the child and develop respect for the petitioner. Both respondent and petitioner shall not talk ill of each other with the child and make effort to raise respect for each other in the mind of the child. This meeting/visitation/sharing of vacation/holidays arrangement shall come into force w.e.f 1st January, 2024.
126. In the mean time child be taken to Child Psychologist for evaluating and removing the unfounded fear that child carries of her father.
Name of the best Child Psychologist of parties’ choice be suggested within a week of this judgement whereafter respondent shall take the child for counseling session regularly on daily basis or as to be advised by the said Psychologist. Ld. Psychologist before embarking on the session with the child, should first hear both the parents separately which may help him to get into problem that got into the mind of the child. Direction of the treatment/session should be to remove the fear in the mind of the child, ensure frequent mixing of the child with her father, making her realise the role of her father in life and to facilitate spending greater time with father during vacation, tour etc. including overnight stay. He shall be free to employ all means including making the child meet her father in his chamber/clinic, he considers necessary. The cost of such session shall be borne by the petitioner. Depending upon the report of the said Child Psychologist, implementation of the right of visitation etc.
as granted in the preceding paragraph shall be either preponed or postponed to any other date or would be midified.
127. Respondent would get petitioner’s name included in the child’s school record within 30 days of this judgment by writing to the Shiv Nadar School failing which petitioner can approach the school based on this judgement to get his name added and access to all academic and extra curricular information of the child. School authorities would comply with same. Depending upon report of his relation with the child, petitioner can visit school in the sight or/and presence of the child. Respondent will not take the child out of India permanent stay without the concurrence of the petitioner or without the permission of the court, however for she can take the child for tour etc but after sharing the itinerary with the petitioner and keeping in mind the vacation/holiday sharing above direction in mind.
128. Petitioner shall pay 50% of the school fee directly to the school, 50% i.e. Rs. 8,000/- of the extra-curricular activity charges directly to the concerned service provider and remaining of 50% of Rs. 90,000/- (estimated to be reasonable monthly expense of the child) directly to the respondent. This shall be effective from 01.10.2023. As school fee and fee of extra curricular activities increases every year, petitioner will proportionate increase the same without adjusting the increase from the amount that would go to respondent towards “remaining of 50% of Rs. 90,000/-”. This “remaining of 50% of Rs. 90,000/-” should also be increase by 5% every year starting 1st Oct of the year.
129. Marriage between the parties are hereby dissolved by a decree of divorce by consent under Section 13B of the HMA for the reason discussed herein before.
130. With aforesaid adjudication nothing survives in the present petition for adjudication, hence file be consigned to Record Room after necessary compliance.
(HARISH KUMAR)
Announced in the open court. Judge, Family Court, PHC
(Judgement contains 89 pages) New Delhi/03.10.2023