“Unproven Extra-Marital Affair allegations do not constitute cruelty”; Delhi High Court sets aside Divorce Order

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Delhi High Court:In an appeal filed by the appellant-wife challenging the judgment passed by the Family Court that allowed the petition seeking dissolution of marriage and thereby granted divorce on grounds of cruelty, a division bench of Sanjeev Sachdeva and Manoj Jain, JJ., sets aside the impugned order as the allegations of cruelty leveled by the husband remained unproven during proceedings and this by no stretch of imagination amounts to cruelty. The Family Court held that allegations such as the husband being in an illicit relationship and that he had attempted to kill her are ‘not proved’, therefore, such unproven allegations were sufficient to cause mental cruelty.

The Court remarked “the husband had prayed for divorce on specified instances of cruelty which he could not prove. He then went on to seek divorce claiming that his wife had not been able to prove the above serious allegations questioning his conduct and character. His wife though could not prove the aforesaid allegations but fact remains that there is nothing which may show that these were false, deliberate or motivated. There is also nothing on record which may compel us to record that her such allegations stood disproved.”

The main grievance of the husband, a government servant, was that the conduct of the wife was very rough, and she even filed false cases against him. She was in the habit of calling police unnecessarily, particularly because her younger brother was in Delhi Police. The husband, therefore, became mentally, physically and financially disturbed on account of her cruel behaviour which led him into filing the divorce petition.

The wife denied all the allegations and claimed that they both had cordial relations till August 1991 until her husband developed an illicit relationship with a woman named Sunita and started residing somewhere else. She made her best efforts to settle things and even requested him to mend his ways for the sake of their children, but he did not give any heed to her request. Rather, he became so enraged that on 23-10-1991, he tried to kill her by pouring kerosene oil on her. Such an incident resulted in the registration of an FIR.

The Trial Court, after analyzing the evidence led by the parties, concluded that the instances narrated by the husband could not be termed as grave and weighty and of such nature to infer that the marriage needed to be dissolved. However, despite, holding that the allegations of the husband did not amount to cruelty, divorce was still granted to him as the wife had indulged in character-assassination of her husband by claiming that he was in an illicit relationship and that he had attempted to kill her and such unproven allegations were sufficient, in themselves, to cause mental cruelty.

The Court noted that there are two major allegations, firstly, that the husband is having an illicit relationship with someone and secondly, his attempt to kill her by pouring kerosene oil on her. There is a huge difference between a fact being “proved”, “not proved” and “disproved”. If any allegation made about the other spouse being in an illicit relationship is ‘proved’ then the other side stands precluded from raising any kind of grievance about such allegation. It may not be always possible for a person making an allegation to be able to prove the same by bringing sufficient evidence on record. In such a situation, allegations would simply remain in the realm of being “not proved” and it cannot be, ipso facto, assumed to be false, motivated or vexatious, unless held so specifically. Also, there can be a situation where on account of the evidence brought on record, including that by the other spouse, the court may even go to the extent of concluding that such an allegation stood “disproved”.

The Court further noted that in the present case, the family court has merely concluded that the allegations were “not proved” as distinct from “disproved”. However, in the cross-examination, though, he denied any such extra-marital relationship, he nowhere stated that such allegation had caused any mental trauma to him. Even in the affidavits filed by his sisters and maternal uncle and their cross-examination, there is not even a whisper or suggestion that such allegations had inflicted any mental cruelty upon the husband. Thus, there is no denial by or on behalf of the husband to the allegation of extra-marital affair or that such allegation was false or motivated, much less that it had caused any mental trauma to him.

The Court concluded that in the present case, though the wife had made an allegation of extra-marital affair against her husband in her written statement, nonetheless, when the husband entered the witness box and tendered his affidavit in evidence, he did not whisper even a word in this regard. He was the one who had come to the Court seeking dissolution of marriage and if he felt mentally traumatized by such allegations, it was but expected that he would have deposed so in his affidavit. This is a serious lapse on his part which disentitles him to seek dissolution of marriage on the said ground.

The Court opined that no doubt there is an allegation of extra-marital relationship in the written statement filed by the wife but, at the same time, mere fact that she is not able to prove the same would not necessarily mean that the allegation was per se false or actuated by any malice or ill-will, unless held so by the Court. Moreover, there is nothing to indicate that the allegation was found to be “disproved”. Since the petitioner-husband never claimed in his affidavit that such an allegation had caused any mental cruelty upon him, the family court should not have assumed this.

Thus, the Court held that based on the factual matrix and the evidence led by the parties, there is nothing which may imply that such allegations were evidently false. These were also not held as “disproved”. His wife though could not prove the aforesaid allegations, but the fact remains that there is nothing which may show that these were false, deliberate or motivated.

[Kamlesh Sharma v. Yogender Kumar Sharma, 2023 SCC OnLine Del 4779, decided on 08-08-2023]

Advocates who appeared in this case :

For the Appellant: Mr. Atul Kumar and Mr. Nishant Prakash, Advocates with appellant in person;

For the Respondent: Respondent in person (through VC).

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