MANU/DE/2079/2020

Equivalent Citation: 2021(3)ALLMR12, 275(2020)DLT475, I(2021)DMC23Del., 2021(1)RCR(Civil)161

IN THE HIGH COURT OF DELHI

MAT. App. (F.C.) 92/2020 and CM Appls. 14842-14843/2020

Decided On: 20.11.2020

Appellants: Kirti Nagpal

Vs.
Respondent: Rohit Girdhar

Hon'ble Judges/Coram:
Manmohan and Sanjeev Narula, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Manish Sharma, Ninad Dogra and Jigyasa Sharma, Advocates

For Respondents/Defendant: Prabhjit Jauhar, Advocate

Case Note:
Family - Marriage - Dissolution of - Section 13(1)(ia) of Hindu Marriage Act,1955 (HMA) -
Present appeal filed to challenge impugned judgment which allowed petition of respondent
by granting divorce under Section 13(1)(ia) of HMA - Whether court below justified in
granting divorce - Held, irretrievable breakdown of marriage is not ground for divorce in
statute -Prolonged and continuous separation in present case - Matrimonial bond is beyond
repair -Refusing to severe matrimonial ties would cause further mental cruelty to
Respondent -Conclusion drawn by Trial Court cannot be faulted with -Appeal dismissed.[25]

JUDGMENT

Sanjeev Narula, J. on 24th June, 2012 at Delhi as per the Hindu

rites and ceremonies. At the time of
1. By way of the present appeal, the Appellant- solemnization of the marriage, the Respondent
wife has impugned the judgment dated 22nd husband's marital status was that of a divorcee
February, 2020 (hereinafter referred to as the and Appellant wife was a bachelorette. After
Impugned Judgment') passed by the learned the marriage parties lived together in
Principal Judge, Family Courts, South-East Singapore from 1st July, 2012 till 26th August,
District, Saket Courts, New Delhi whereby the 2012. The marriage was also registered in
Court, while rejecting the relief sought under Delhi on 31st August, 2012.
Section 12(1)(a) and (c), has allowed the
petition of the respondent by granting divorce 3. The Respondent initially preferred a petition
under Section 13(1)(ia), of the Hindu Marriage seeking a decree of nullity of marriage under
Act, 1955 (hereinafter referred to as the Section 12(1)(a) and (c) of the HMA, on two
HMA'). grounds, that the marriage could not be
consummated due to Appellant's impotency
Brief facts: and that his consent was obtained by
concealing several material facts related to the
psychological disposition of the Appellant,
2. The brief background of the case is that the
knowing which, he would not have consented
marriage between the parties was solemnized
for the marriage.

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4. In the Written Statement filed before the was decided against the Respondent. Next, the
Trial Court, the Appellant inter-alia pleaded Learned Trial Court held that no material facts
that: (i) the Respondent was suffering from were concealed by the Appellant when the
impotency (erectile dysfunction) which was the Respondent consented to the marriage and
true cause of non-consummation of marriage, therefore, it could not be said that his consent
(ii) the parents of the Respondent had a had been obtained by fraud or force.
quarrelsome nature, (iii) the first wife of the Accordingly, the Issue No. 2 was also decided
Respondent was also tortured by the parents against the Respondent. Resultantly, the Court
of the Respondent, (iv) Respondent's parents held that the Respondent was not entitled to
demanded dowry, (v) cruelty and decree of nullity against the Appellant, and
misappropriation of dowry articles, and (vi) the Issue No. 4 was decided against the
Respondent thrashed the Appellant badly in Respondent. However, as regards Issue No. 3,
front of his parents on 30th June, 2012. the Court held that the Appellant had made
false allegations in her written statement qua
5. Placing reliance on Appellant's written (a) the impotency of the Respondent, and (b)
statement, the Respondent amended his her harassment for dowry and ill treatment at
petition and additionally sought relief of the hands of the Respondent and his family.
divorce on the ground that the allegations These unsubstantiated and unproved
made in the written statement were false and allegations were held to be the cause of mental
had caused him mental cruelty. On the basis of suffering of the Respondent. The Learned Trial
amended pleadings, vide order dated 1st Court held that the Appellant had treated the
August, 2016, the Trial Court framed the Respondent with cruelty within the meaning of
following issues: the section 13(1)(ia) of HMA and Issue No. 3
was thus decided in favour of the Respondent.
Besides, the Court also observed that the
(1) "Whether the marriage has not been
relationship between the parties had
consummated owing to the impotence of the
deteriorated to such an extent that it became
respondent? OPP
impossible for them to live together without
mental agony, torture or distress. The court
(2) Whether the consent of the petitioner for observed that the marriage is beyond repair
marriage was obtained by force or fraud? OPP and was a dead marriage as it is not possible
for the parties to live together. Thus, Issue No.
(3) Whether the respondent after 5 was decided in favour of the Respondent and
solemnization of marriage has treated the the Learned Trial Court allowed the petition to
petitioner with cruelty? OPP the extent of granting divorce under Section
13(1)(ia) of the HMA, with effect from 22nd
(4) Whether petitioner is entitled to decree of February, 2020.
nullity against the respondent? OPP
7. Aggrieved with the above order, the
(5) Whether the petitioner is entitled to a Appellant has approached this court praying for
decree of divorce? OPP the stay and setting aside of the impugned
judgment as well as seeking directions that her
petition of restitution of conjugal rights,
(6) Relief." pending in the court of Sh. Sanjiv Jain, Judge,
Family Courts, South-East District, Saket
6. To substantiate the case, the Respondent Courts, New Delhi, be heard and decided on
examined himself (PW1) and one Dr. Prof. merits.
Anant Kumar, (PW2), as expert witness, who
was Chairman, Urology, Renal Transplant and Appellant's Contentions:
Robotics of Max Hospital, Saket, New Delhi. On
the other hand, the Appellant produced six
witnesses in support of her case. After the 8. Mr. Manish Sharma, learned counsel for the
conclusion of trial and on the basis of the Appellant argued that the Learned Trial Court's
evidence produced, the Trial Court concluded conclusion is not based on correct appreciation
that the Respondent had failed to prove that of the facts, the evidence, as well as the law.
the marriage had not been consummated His arguments can be summarized as follows:
owing to the impotency of the Appellant.
Accordingly, Issue No. 1 enumerated above (a) Regarding claim of impotency of the
Respondent:

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9. Mr. Sharma emphasised that the Trial Court iii. The problem of erectile dysfunction could
had erred and wholly misdirected itself by also happen in an otherwise physically healthy
treating the averments made in the written person due to lack of physical and mental
statement out of context. It was insisted that stimulus.
the Appellant, in/through the written
statement, was only responding to the iv. In response to a direct question, he
allegations made in the petition, and give her admitted that if a person does not like his
version of facts by urging that Respondent's partner, then the person may not get aroused.
impotency was the real cause for the non- In furtherance of this, reliance was placed on
consummation of the marriage. However, it Sucharitra Kalsie v. Rajinder Kishore Kalsie,
was contended that this stand of the Appellant MANU/DE/0180/1974 : 11 (1975) DLT 92, to
was neither considered nor appreciated by the argue that an individual can be impotent
Learned Trial Court and the judgment was towards his wife, but otherwise, may be able to
passed in an arbitrary manner, with a have sexual intercourse. Therefore, the
preconceived notion. Mr. Sharma further testimony of Dr. Anant Kumar cannot be given
argued that reasoning of the Learned Trial undue credence.
Court is flawed, for the reason that, on the one
hand it has been observed that Appellant's
(c) Regarding claim of cruelty caused by
claim viz. Respondent's impotency stood
Appellant to Respondent:
negated owing to the fact that after about two
months of marriage the parties went ahead for
registration of marriage, whereas, on the other 11. Mr. Sharma also argued that despite the
hand, the Trial Court without any justification Respondent's false and untrue allegations
or rationale failed to appreciate that the against the Appellant, she has been ready and
Respondent too had also participated in the willing to live in the matrimonial alliance with
registration of marriage after having lived with him at all points in time. She has
the Appellant during the above period. communicated her desire and willingness to
Arguendo, this conduct should have been continue the marriage during the pendency of
considered as negation of Respondent's the proceedings and in multiple mediations.
allegations qua Appellant's mental health and Documents placed on record such as emails,
behaviour which were being countered in the pictures, messages, complaints are also
original written statement. indicative of the same. It is thus argued that
this conduct of the Appellant, is the very
opposite of cruelty, and does not gel with the
(b) Regarding expert witness testimony:
findings given by the Trial Court to the effect
that Appellant has treated the Respondent with
10. Mr. Sharma laid considerable stress that cruelty.
the Learned Trial Court has erroneously relied
upon the testimony of Dr. Prof. Anant Kumar
12. In this regard, Mr. Sharma further argued
to assume that the Respondent was not
that the Court had to judge whether cruelty
impotent and to further conclude that the
was in the nature of regular practise, for which
allegations of the Appellant were false and
the Appellant's conduct has to be seen as a
scandalous. The following reasons were put
whole rather than going by a specific instance,
forth:
and if so, whether it was of the type or degree
which merited the grant of divorce. He pointed
i. The conclusion arrived at by Dr. Prof. Anant out that there was no allegation of cruelty prior
Kumar were based on assumptions and to Appellant's filing the written statement.
presumptions. In his cross examination, he had Presumption has to be drawn in this regard in
admitted that he had seen the Respondent favour of the Appellant. He maintained that a
only on 12.07.2015, and he "presumed" that stray pleading cannot be made a ground to
the Respondent was not impotent in the year grant divorce, pertinently, when the allegation
2012. was neither raised prior to the filing of the
written statement, nor shown in the conduct of
ii. The expert witness Dr. Prof. Anant Kumar the Appellant throughout the pendency of the
admittedly did not subject the Respondent to proceedings. The Appellant has been seeking
any investigation and relied upon purported restitution of conjugal rights since beginning
earlier reports which were not on record. and was ready and willing to save matrimonial
alliance with the Respondent and therefore,
the impugned judgment should be set aside.

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Respondent's Contentions: iii. In the present appeal, in another paragraph
it is alleged that "the respondent has a fixed
# pattern and style whereby he marries women
just for a couple of months and then when he
gets fed up of them, he tries to get rid of them
13. Mr. Prabhjit Jauhar, learned counsel for the
by making all sorts of false allegations and
Respondent on the other hand strongly
character assassinations."
opposed the petition and argued that the
findings of the Learned Trial Court were wholly
justified on the basis of the pleadings and the 16. Lastly, Mr. Jauhar submitted that since 3rd
evidence produced before the Court in the September, 2012, the parties have been living
nature of oral testimonies and the separately, due to which reconciliation is
documentary proof. impossible and the marriage has irretrievably
broken down and thus there is no reason to
carry on with the marriage which is dead for all
14. He argued that the Appellant had made
intents and purposes.
grave allegations against the Respondent and
his family, especially those concerning
Respondent's impotency. These allegations Findings:
remained unsubstantiated despite Appellant
producing five witnesses along with her own 17. We have given due consideration to the
deposition. Particularly, she made no effort to rival contentions urged before us and have
produce any evidence to justify or prove her carefully perused the record. The learned Trial
allegations. Mr. Jauhar asserted that, in the Court has dissolved the marriage between the
absence of any documentary or medical parties on the ground of cruelty within the
evidence that could suggest that the meaning of Section 13(1)(ia) of the HMA. This
Respondent was unfit to consummate the finding is primarily premised on the allegations
marriage, the Learned Trial Court has rightly made by the Appellant in her Written
held such allegations in the Written Statement Statement to the original petition filed by the
to be false and amounting to mental cruelty. Respondent under Section 12 of the HMA.
Likewise, the allegations regarding Appellant Thus, the nature and the extent of allegations
being mistreated and tortured at the hands of made by the Appellant is beyond any
the parents of the Respondent also remained controversy. These allegations can be broadly
unsubstantiated. categorised under two different compartments:
(i) allegations pertaining to the impotency of
15. Further, Mr. Jauhar vehemently argued the Respondent, and (ii) allegations with
that aside from the above, the Appellant had respect to mistreatment, torture and dowry
made reckless and venomous allegations qua demand against the Respondent and his
the Respondent, and no self-respecting person parents. These allegations laid the foundation
would like to continue in a matrimonial alliance for the ground of cruelty. The Respondent
with a partner who makes such allegations. brought in evidence to establish before the
Some of these have been presented to us as Court that he was not impotent, and that the
under: false and untrue allegations were causing him
mental stress and amounted to cruelty. In this
endeavour, besides examining himself, the
i. Appellant has alleged that the Respondent
Respondent also produced Dr. Prof. Anant
"considers women to be as a part of disposable
Kumar as an expert witness. The doctor proved
commodity and he specializes in disposing
the medical report dated 12th July, 2015
them off without any further thought till he
exhibit (PW1/1) and was extensively cross-
preys upon his next hapless victim."
examined by the Appellant's counsel. He
deposed that, on the basis of physical
ii. Even in the present appeal, the Appellant examination, the Respondent was found to be
has not spared the Respondent and has called a normal male adult with fully developed
him a "serial marrier" in the pleadings, who secondary sexual character and organs, normal
"marries and dumps young women without any endocrine and sexual function, and had no
reason as and when he pleases" and who "has problem of impotence. The Learned Trial Court
a kink of marrying the girls for less than a concluded that the credibility of the witness
couple of months and then divorcing him for no could not be impeached, and since he had
fault of theirs.". specifically examined the Respondent and
found that the Respondent suffered no medical

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infirmity that could render him incapable of regard must be had to the social status,
consummating the marriage, the allegation of educational level of the parties, the society
impotency made by the Respondent was not they move in, the possibility or otherwise of
proved. The witness is a very highly qualified the parties ever living together in case they
medical expert with immaculate credentials. are already living apart and all other relevant
His testimony has thus been rightly relied upon facts and circumstances which it is neither
by the Learned Trial Court to give a finding on possible nor desirable to set out exhaustively.
this issue in favour of the Respondent and we What is cruelty in one case may not amount to
find no reason for interference on this score. cruelty in another case. It is a matter to be
Further, we also agree with the observations of determined in each case having regard to the
the learned trial court that, it was imperative facts and circumstances of that case. If it is a
for the Appellant to produce positive evidence case of accusations and allegations, regard
to substantiate and prove the allegations made must also be had to the context in which they
in the written statement (such as medical were made."
evidence) in order to counter the evidence and
the expert witness testimony produced by the 19. As regards the allegations made in
Respondent. After all, these accusations were pleadings, Courts have considered this
levelled by the Appellant and the onus lay on question time and again and it is now no
her to establish the veracity of same. longer res integra that false, baseless,
Concededly, the Appellant entirely failed to scandalous, malicious and unproven allegations
produce any medical or corroborated evidence made in the written statement may amount to
that could remotely suggest that the cruelty. If it is established from the evidence
Respondent was medically unfit to that the allegations were evidently false, then
consummate the marriage. Therefore, in such baseless allegations made in the written
absence on any such evidence, Appellant's statement can amount to cruelty and the Court
allegations remained unsubstantiated. can pass a decree of dissolution of the
marriage. In Jayanti v. Rakesh Mendiratta,
18. Now the next question is whether a false MANU/DE/2904/2016 : 2016 (4) CLJ 498 Del,
allegation of impotency amounts to cruelty it was held that in matrimonial proceedings,
within the meaning of Section 13(1)(ia) of the the pleadings assume great significance.
HMA. It is true that cruelty has not been Similarly, in the case of V. Bhagat (supra),
defined in the HMA. It can be physical or grave false allegations were made by the wife
mental. It is primarily contextual, pertaining to against the husband in her written statement.
human behaviour or conduct with respect to Such allegations were even put to the husband
matrimonial duties and obligations. It is in cross-examination. The Supreme Court held
therefore, essential to see whether the conduct that such allegations were bound to cause
of the party is of such a nature, that a mental pain and anguish to the husband
reasonable person would neither tolerate the amounting to mental cruelty and dissolved the
same, nor be reasonably expected to live with marriage between the parties. In the present
the other party. The Supreme Court in the case case, we therefore agree with Mr. Prabhjit
of V. Bhagat v. D. Bhagat, Jauhar that the allegations in the Written
MANU/SC/0155/1994 : AIR (1994) SC 710, Statement are grave and serious accusations,
observed as under:- which are likely to impact Respondent's self-
image and adversely affected his mental well-
"Mental cruelty in Section 13(1)(ia) can being. Thus, having regard to the law on the
broadly be defined as that conduct which subject, we find no infirmity in the findings and
inflicts upon the other party such mental pain observations of the trial court that the
and suffering as would make it not possible for allegation of the Appellant in the Written
that party to live with the other. In other Statement with respect to the impotency
words, mental cruelty must be of such a nature clearly falls within the concept of cruelty as
that the parties cannot reasonably be expected defined under law.
to live together. The situation must be such
that the wronged party cannot reasonably be 20. We cannot accede to the contention of Mr.
asked to put up with such conduct and Sharma that the allegation of impotency
continue to live with the other party. It is not attributed to the Respondent was only qua the
necessary to prove that the mental cruelty is Appellant. In support, reliance placed on a
such as to cause injury to the health of the portion of the statement of the medical expert
petitioner. While arriving at such conclusion, Dr. Kumar, to the effect "In unusual situations

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like this when a person does not like the made in pleadings. The assertions in the
partner, or the environment is not conducive, pleadings are to be supported by affidavit in
he may not get an erection" is misplaced and terms of the HMA and the rules framed
out of context. This response is part of a longer thereunder. The purpose of having an affidavit
answer to the question whether "a person with accompanying the pleadings is to give due
a normal sperm count can be impotent". sanctity to the same. In fact, now the rules of
Moreover, this is the general opinion of the pleadings under several jurisdictions have
expert on the subject. It was for the Appellant evolved and they prescribe that the petitions
to produce evidence to establish the extent be accompanied by a 'Statement of Truth'. All
and nature of impotency of the Respondent, as of these are methods to ensure that no party
is now being portrayed before us. She ought to may level untrue allegations against the other
have applied to the Trial Court to have the in a court of law as mere counterattack or in
Respondent medically examined in this regard. vengeance. We cannot allow the parties to be
Undeniably, no such attempt was made. Since so casual about the averments made in the
no evidence was produced by her to pleadings. There can be no justification for any
substantiate her case, this plea has no basis party to retaliate by making untrue and false
and is rejected. allegations regardless of how provocative the
allegations may be. If the Appellant was hurt
21. We are also not at all persuaded by the by the allegations made by the Respondent,
explanation offered by Mr. Sharma for making she had her legal remedies against the same.
allegations that are in controversy. Mr. Sharma It did not certainly give her a carte blanche to
argued that the allegation of impotency was in make counter allegations which were untrue
retaliation to the Respondent's allegation of and cause deep humiliation to the Respondent.
impotency towards the Appellant. He laid
considerable stress on the fact that, as the 22. Further, we also find that the justification
allegations in the petition were of a serious put forth by the Appellant to be contrary to the
nature and since the Respondent was casting record. It was not a one-off casual retaliatory
aspersions on Appellant's sexual behaviour, remark. The stand in the written statement
she was justified in retorting by making a was sustained all throughout the trial, till the
counter-allegation. This explanation is wholly stage of final decision. The imputations and
unconvincing, and does not dilute the act of allegations made by the Appellant in the
cruelty committed by her. Besides the Written Statement have been repeatedly
explanation is legally untenable and cannot be reinforced during trial by giving suggestions to
accepted. The averments made by a party in the Respondent and also to his expert witness
its pleadings before a Court of law have to be during the course of their cross-examinations.
given due sanctity and have to be treated with Significant effort was made to establish that
seriousness. These allegations made in the the Respondent was indeed impotent and
pleadings are brought in the public domain and incapable of sexual intercourse. This line of
the Court is expected to give its verdict on the cross-examination of the Respondent and his
basis of the allegations and the counter- expert witness clearly establishes that the
allegations made by the parties. No party can Appellant endeavoured to attribute the non-
be excused of recklessness in allegations made consummation of marriage to the Respondent's
before the Court of law. The consequences of impotency. In fact, in the cross-examination
false assertions have to follow. Allowing the and also in the pleadings, the Appellant has
respondent to get away with the consequences attempted to establish that Respondent's first
of false allegations, or treating them as trivial, divorce was also related to his sexual
would not advance the cause of justice. Even incompetence. We, thus not find any merit in
in V. Bhagat's case (supra), the Supreme Court the contention of the Appellant that the
had taken a strong view of the matter with allegations of cruelty are only based on one
respect to false allegations, opining that such stray incident. We do not find any infirmity in
allegations made in a formal pleading filed in the finding of the Learned Trial Court on this
the Court went far beyond the reasonable aspect as well.
limits of the wife's defense. Particularly, in the
context of the proceedings under the HMA, 23. As regards Appellant's allegations relating
Section 20 specifically stipulates that the to torture and mistreatment, we do not find
averments made in the pleadings will be anything wrong with the finding of the Learned
treated as evidence and the court is thus Trial Court. The Learned Trial Court had
empowered to act upon unfounded allegations meticulously examined the evidence produced

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before it and concluded that these allegations Trial Court has noted that although
remained unsubstantiated and there is no irretrievable breakdown of marriage is not a
reason to take an exception to the findings ground for divorce in the statute, however the
recorded by the Trial Court. The Appellant has courts have been taking this aspect into
not been able to establish her case that she consideration. There has been a prolonged and
was mistreated or tortured. In the absence of continuous separation, and the matrimonial
any cogent and independent evidence put forth bond is beyond repair. Therefore, refusing to
by the appellant, the allegations levelled by her severe the matrimonial ties would cause
remain unsubstantiated and unproven. further mental cruelty to the Respondent. In
view of the totality of the circumstances,
24. We also do not agree with the Appellant evident from the nature of allegations and
that cruelty in the present case was not a counter allegations made by the parties and
sustained or severe one. The Supreme Court the evidence that has come on record, the
has elaborately discussed the concept of conclusion drawn by the Trial Court cannot be
mental cruelty in Samar Ghosh v. Jaya Ghosh faulted with.
MANU/SC/1386/2007 : (2007) 4 SCC 511.
Indeed, mental cruelty is a state of mind and 26. In view of the foregoing, we find no merit
what might be cruelty in one case may not be in the present appeal. Accordingly, the appeal
so in another case, as observed by the Trial and the applications are dismissed.
Court. The Court has carefully examined the
facts and evidence and observed that the © Manupatra Information Solutions Pvt. Ltd.
allegations are scandalous and malicious.
Appellant persistently humiliated the
Respondent causing him mental agony, pain
and suffering. The cruelty in the instant case is
of enduring and profound nature. Thus,
notwithstanding the fact that there is no
allegation of cruelty in the original petition, the
Trial Court was justified to conclude that it was
of grave nature that caused lasting disruption
in the relationship between the parties. We
also note that the Appellant's conduct of
making unfounded allegations has continued
right up to the appellate stage, as has been
pointed out by Mr. Jauhar in his submissions.
These false accusations which could not be
proved are bound to cause deep hurt and
anguish to the Respondent, who can
reasonably apprehend that it would be perilous
for him to live with the appellant. It is also
abundantly clear that due to the mental pain,
agony and suffering caused by the false
accusations, the Respondent cannot be asked
to put up with the conduct of the Appellant and
to continue to live with her. Therefore, we do
not find any infirmity in the impugned
judgment on this ground as well.

25. Lastly, we also do not find any infirmity in

the approach of the Learned Trial Court by
placing reliance upon the judgment in Samar
Ghosh (supra), on the aspect of irretrievable
breakdown of marriage. Undisputedly, the
Appellant and the Respondent have been
separated for more than eight years and since
the separation has continued for a sufficient
length of time, it can be presumed that the
marriage has irretrievably broken down. The

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