Written Arguments

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March 30, 2021

Drafting
March 30, 20210 By Avinash Nandan Sharma

IN THE COURT OF SH. SANJAY KUMAR

PRINCIPAL JUDGE , FAMILY COURTS, KARKARDOOMA, DELHI

HMA NO. 457/18

IN THE MATTER OF:

Manas Kumar … Petitioner

Versus

Sheela Kumari …. Respondent

DOH : 13.10.2020

WRITTEN ARGUMENTS / SYNOPSIS ON BEHALF OF THE RESPONDENT MRS.

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Sir,

It is respectfully submitted as under:-

1. That the petitioner categorically states in his cross – examination dated 03.11.2018
(after 3rd line from above) – “ I sustained injuries on 27.06.2014 as assaulted by the
parents of the respondent and her brother. The injury was inside the body which
was not visible that is why MLC was done at that time. I have not filed the said MLC
along with my petition in this case. The father namely Mr. Avadh Kumar and two
brothers Raju Kumar and Nikhil were standing near the house and assaulted me on
the aforesaid date.” Interestingly enough , he further states at the same place of
cross – examination that he has not mentioned this fact in his evidence by way of
affidavit and voluntarily says that he has mentioned the aforesaid facts in his
petition. As a matter of fact, no such incident is mentioned even his Petition. A
prima facie lie is visible here as the petitioner in the same sequence of cross-
examination says under again said line – the brother of the respondent only
assaulted and I was caught by her father and another brother.
2. That the petitioner categorically stated in his cross examination dated 03.11.2018
that – “My parents did not reach at my rented accommodation on the day of the
incident dated 27.06.214” Quite contrary to this fact, PW3 Sh. Babu Ram , father of
the petitioner deposes in para – 12 of his examination in chief that – “ When I
reached at the rented house, I found the PCR and her parents also at the spot I do
not know how her parents reached there…”
3. That in para 7 of the petition an incident dated 09.10.2011 is mentioned where it is
alleged – “ They started leveling false and frivolous allegations of dowry demand
against them. The respondent’s brother also tried to assault petitioner.” Petitioner
has made a very nice improvement in his cross – examination dated 03.11.2018
(Second line of Second page from above) – “The father and brother Raju of the
respondent along with one relative i.e. Rajender Prasad gave beatings and
assaulted me on 09.10.2011 in the presence of my parents and wife. Mr. R.K.
Sharma intervened in this matter and tried to sort it out but aforesaid persons
threatened me and my family members and went away. Mr. Sharma is one of the
witness in the witness list filed before the Hon’ble Court.” Quite contrary to this
presentation of the petitioner , 2 R.K. Sharma in his cross examination dated
25.04.2019 ( Second page Second line) says the quarrel was verbal.
4. That on the night of 27 -28 of June 2014 the respondent wife in a critical condition
was taken to Lal Bahadur Shashri Hospital, Khichadipur, Delhi because her left wrist
was slit with knife. The lie of the petitioner has reached its highest position when he
says in para 17 of the petition (Second line) – “ The father and brother of the
respondent and also respondent started beating , abusing the petitioner in the
presence of his friends and relatives and threatened him..” The same fact was
reiterated in para 18 of the Petitioner’s Evidence by way of affidavit. However in his
cross-examination dated 03.11.2018 petitioner states completely different facts at
this point of the alleged incident – “ In the night of 27.06.2014 , while I was in the
hospital at about of 12:00 A.M. where I was again assaulted by my mother –in – law
and sister –in – law namely Sunita and they had abused me sexually.”

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5. That in support of his case the petitioner examined Radha Kishan Sharma as PW2
who has not at all supported the facts of the petitioner, rather shown his complete
ignorance in this matter. PW2 R.K. Sharma himself as a witness did not know what
to say in this matter as at one place of cross examination dated 25.04.2019 (
Second page) says – “I know the petitioner’s family since 2011. “When he is
contradicted with his Examination in Chief , he states – “It is correct that I have
mentioned in my affidavit that I know petitioner’s family for last 30 years.”
6. The petitioner strategically entered into a compromise on 20.01.2014 just to clear
the complaints filed by the respondent before different authorities against him. It is
submitted that as per his devil plan , he took a rented accommodation separately
from his parents in the house of K.R. Gupta who is his neighbor and misguided this
court that it was due to the condition of the respondent for settling the matter.
Petitioner in his cross examination says that – “ No such statement of the
respondent has been mentioned in the compromise order but the same condition of
the respondent has been mentioned in CAW Cell in the closing statement. I have
not filed the said copy in this case.” However PW3, father of the petitioner says in
his cross examination dated 27.05.2019 (page3 of cross) – “ It is correct that my
son started living in neighbourhood in a rented house. Vol. It was because of court
direction under Section 9 HMA petition. I have not filed the said order before this
Court. It is wrong to suggest that no above order passed by any court. These facts
show that the petitioner is playing with words without factually supporting his stand
through evidence and hence misguiding this Hon’ble court on the point of legal
facts.
7. That the petitioner is not with clean hand before this court when he says in his cross
examination that – “ I have no joint account with my wife anywhere.. I have not got
insured my wife. I have not opened any account of my wife in any bank.” The
petitioner and his family members are greedy and had been torturing the
respondent for the fulfillment of their demand of dowry. That is way the petitioner
did not care for her intentionally.
8. That the petitioner has concealed many things in his income affidavit which is again
the proof of his being unclean before this Hon’ble Court. In his cross examination
dated 30.05.2018, the petitioner states – “ It is correct that I have written NA in my
affidavit pertaining to appointment letter and salary slip..I have given the details of
other tow accounts in my DVA case pending in Saket Courts, however I have
mentioned in my income affidavit three accounts but neither the account number nor
the name of the banks have been given. It is correct that I have not mentioned my
fourth bank account in income affidavit. I have enclosed my details of bank account
, passbook etc in the DVA case.” It might be first case of it nature where the
petitioner wants decree of divorce from this Hon’ble Court and refers his filing of all
details and documents in DVA case and very boldly admits it without making it a
matter of mistake.
9. In an FIR No. 626 , P.S. Badarpur, U/s. 498A / 406 / 34 IPC dated 24.10.2014
petitioner and PW3Babu Ram are co-accused and hence being an abettor , the
PW3 is not supposed to be a reliable witness of the petitioner in the instant case.

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10. That the petitioner has a very unique way of fighting case as the PW3 Sh. Babu
Ram , the father of the petitioner who claims to be the author of many complaints
before authorities against respondent says in a very light mood in his cross
examination dated 27.05.2019 (Starting line of first page of cross examination) that
– “ I have the originals of Mark 7 and 8 but today I have not brought the same…. I
have sent the complaint to the police from time to time in this matter. I can show the
complaints which have been given to the police.” Interestingly enough, he is not
ready to show all these documents at the time of evidence and wish to get decree of
divorce in a lighter mood which is never the mandate of family law.
11. That neither in the petition nor in the affidavit by way of evidence, the petitioner has
mentioned any incident of his getting beaten by the father and brothers of the
respondent and preparing of any MLC in this regard, however in on page 14 of the
List of Documetns annexed with the petition in a police complaint dated
30.06.2014 he writes on page 15 ( Second para) – “ Sir, I have every apprehension
that they knowing hatching the conspiracy against me to implicate me in false case,
even on 27.06.2014, Shri Raju and Awadh Kishore assaulted me very seriously
henece my MLC was also conducted but neither any report was registered nor my
MLC has been taken into account.” Interesting enough, on page 20 of the list of
document in another police complaint dated 23.08.2014, petitioner mentions one
more person namely Nikhil Prasad as assailant and writes (second page) – “On the
same time I was also beaten by my father in –law Sh. Awadh Kishore and my
brother in – law, Raju Prasad and Shri Nikhil Prasad due to which I was also
medically examined and my MLC was also prepared but neither any report was
registered nor my MLC has been taken into account.”
12. That the petitioner in para 16 (last line) has misguided this Hon’ble Court regarding
a medical fact and says that MLC of the respondent also mentioned that the
“Injuries are self inflicted” which in fact in nowhere mentioned in the MLC.
13. That on 26..09.2012 the father of the petitioner Sh. Babu Ram has made a
complaint of theft against respondent (page3 of List of document of the petitioner)
and made allegation therein that the respondent has taken her daughter with her
and also her all jeweleries / istridhan and other valuable items and also Rs.
60,000/- in cash. However It is quite surprising that the father of the petitioner wrote
letter dated 05.04.2013 to Akhil Bhartia kharwar Mahasabha (Page 8 of List of
document annexed with the petition) and mentioned all facts except this jewlry and
theft of Rs. 60,000/.

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 14. That the issues involved in this matrimonial case for divorce are trivial ones. A
question was asked to the PW3, father of the petitioner regarding bone of
contention between spouses and a very interesting answer came in his cross
examination dated 27.05.2019 (starting lines of page 3) – “ The petitioner and
respondent after marriage for about 2-3 months remained happy. The respondent
was not used to cooperate with my son and my family. The respondent used to use
Tu Tarak language on small issue with petitioner. The brother , sister and other
relatives used to come at matrimonial home of respondent in our absence…” It is
necessary to consider the guidelines of Hon’ble Supreme Court in this regard which
has categorically stated in many judgments that no divorce can be granted on the
ground of wear and tear of family life. Had it not been the wear and tear of family life
, the spouses would not have entered into a compromise before court on
20.01.2014 and the petitioner would not have filed Petition No.778/2013 under
Section 9 of HMA for restitution of conjugal rights under Section 9 of HMA at
Karkardooma Court.
15. A petitioner, in order to get a decree for dissolution of marriage on the ground of
cruelty, is required to prove that he or she has been treated with cruelty by the other
side. If discussed in the light of depositions of the petitioner and his witnesses there
is not an iota of evidence to show that the petitioner i.e. the husband was treated
with cruelty by the respondent. PW2 R.K. Sharma claims to be the witness of verbal
quarrel between the family of the two and says that respondent wife was not
quarrelling. The father of the petitioner says in written complaint to PS. Mayur Vihar
phase one dated 12.10.2011 (page 2 of list of document) – “ Mahoday main is
patra ke madhayam se apko suchit krna chahta hu ki mujhe apni bahu se koi
shikayat nhi h. main ar mera pariwar us se bahot khush hain aur meri bahu v
mere ghar me bahot khush hai.” That the petitioner-husband failed to establish
that he was treated with cruelty by the respondent-wife. Therefore, the petitioner
failed to substantiate the ground taken by him for seeking a decree for dissolution of
marriage.
16. The expression cruelty has not been defined in the Act. Cruelty can be physical or
mental. Cruelty which is a ground for dissolution of marriage may be defined as
wilful and unjustifiable conduct of such character as to cause danger to life, limb or
health, bodily or mental, or as to give rise to a reasonable apprehension of such a
danger. The petitioner has made a false case of cruelty on the ground that the
respondent inflicted injuries to herself. So this stand of petitioner turns his case
into a mental cruelty which has totally different parameters to be judged. As a
matter of fact , the petitioner has inflicted injuries to the respondent and is facing
criminal trial in FIR No.502/14 registered at P.S. Pandav Nagar Under Sections
324/315 IPC. Hence he can not take the benefit of his own wrongs by proving
metal cruelty against him.

17. At the Point of Section 23 (a) of HMA

No one can take the benefit of his or her own wrongs

The Wrongs of the petitioner :-

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 Petitioner is an accused for his criminal acts committed on 27.06.2014 in FIR
No.502/14 registered at P.S. Pandav Nagar Under Sections 324/315 IPC and is
facing trial at Karkardooma Courts.
Petitioner and his family members are involved as accused persons in FIR No. 626
, P.S. Badarpur, U/s. 498A / 406 / 34 IPC dated 24.10.2014 and facing trial at Saket
Courts, New Delhi
Petitioner and his family members are also facing a case under DV Act, 2005 before
Metropolitan Magistrate at Saket Court, New Delhi.
The complaints were filed by respondent against the petitioner and his family
members in CAW Cell, Sriniwas Puri , Delhi on 23.07.2014 and in Delhi Mahila
Aayog on 20.10.2014

18. At the Point of Section 23 (b) of HMA

Condonation of Alleged Cruelty by the petitioner

In his cross examination dated 03.11. 2018 (last line) , petitioner states that – In
2014 a compromise took place between me and my wife on 20.01.2014 at
Karkardooma Court. After compromise dated 20.01.2014 , the respondent was not
living properly. After compromise I along with my wife went to CAW Cell to withdraw
the complaint filed by my wife. Any alleged acts of cruelty prior to the this
compromise at Karkardooma Court have no legal consideration as enumerated in
Section 23(b) of Hindu Marriage Act. So the Hon’ble court is supposed to see only
post compromise incidents and allegations of cruelty between parties and then only
to decide whether the ground of cruelty is made out or not.
That on 31.07.2013, the petitioner filed the Petition No.778/2013 under Section 9 of
HMA for Restitution of Conjugal Rights where a settlement arrived. Filing of a case
of Restitution of Conjugal rights under Section 9 of HMA is itself the proof that no
cruelty has been committed by the respondent against the petitioner and his
parents and the petitioner is willing to resume the close conjugal relationship. Even
if the allegations of cruelty mentioned in the petition are taken as true for the sake of
argument, the petitioner has condoned the cruelty during that period by his acts in
bringing her back to the matrimonial home and living with her. It is contended that
the petitioner is not entitled to get a decree in his favour in view of Section 23(1)
(b) of Hindu Marriage Act,1955 which stipulates that if the Court is satisfied that
where the ground of divorce petition is cruelty, the petitioner has not in any manner
condoned the cruelty, the Court shall decree such relief accordingly.

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 A Division Bench of Himachal Pradesh High Court in Nirmala Devi Vs. Ved
Prakash , AIR 1993 HP 1, following the judgment of the Apex Court in N.G.
Dastane Vs Mrs S. Dastane has held that the petition for condonation of restitution
of conjugal rights obviously implies the condonation of all earlier acts of cruelty and
it was a mandatory duty cast upon the Court to consider whether the petitioner
spouse has condoned the acts of cruelty or not. The Court considered the meaning
of the word condonation and the impact of filing a petition for restitution of conjugal
rights. In Dastane Vs. Dastane SC observed in para 54 “……..Even though
condonation was not pleaded as a defence by the respondent it is our duty, in view
of the provisions of S.23(l)(b), to find whether the cruelty was condoned by the
appellant. That section casts an obligation on the court to consider the question of
condonation, an obligation which has to be discharged even in undefended cases.
The relief prayed for can be decreed only if we are satisfied ‘but not otherwise’, that
the petitioner has not in any manner condoned the cruelty….”

19. At the point of the production of the photocopy documents and their
admissibility

The petitioner has not brought on record the original of most of the document relied
upon by him so same were not even seen by the Hon’ble court in the course of
recording evidence. Reliance could be placed on, Shubhash Harnarayanji Laddha
Vs. State of Mahrashta 2 SCC (Cri.) 122to contend that if the relevant documents
are not produced or the documents produced are not proved, the contents thereof
would be wholly inadmissible in evidence.
In J. Yashoda V. K. Shobha Rani , AIR 2007 SC 1721 SC hold that copy of a
document can be received as evidence under the head of secondary evidence only
when the copies made from or compared with the original are certified copies or
such other documents as enumerated in Section 63 of the Indian Evidence Act. It
was further held that secondary evidence as a general rule is admissible only in the
absence of primary evidence. Secondary evidence of the contents of a document
cannot be admitted without non production of the original being first accounted for in
such a manner as to bring it within one or other condition as provided for in this
section.
Thus law is very clear at this point that the photocopy cannot be treated to be the
document unless it is admitted as a secondary evidence following the provision laid
down in the In the instant case , the petitioner is trying to prove his case on the
basis of photocopy evidence even without even putting it as secondary evidence
following the provisions laid down in the evidence or getting the permission of this
Hon’ble Court in this regard.

20. The testimony of the petitioner witnesses suffers from great contradictions,
inconsistencies, exaggerations and embellishment in material particulars creating
doubts in its truthfulness. The petitioner has not proved his case at all as per the
requirements of family law. He is trying to get the benefit of his own wrongs and
misguiding the court to get the decree of divorce.

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 21. That a daughter aged about 8 years was born out of this wedlock on 01.04.2012
which is the humanitarian ground to be considered by this Hon’ble Court as the
reunion of the parties may result into a very happy and caring life for the child and
her future.
22. Hence considering the above mentioned facts of case and provisions of law, this
Hon’ble Court may graciously be pleased to dismiss the petition of the petitioner
filed for grant of divorce on the false ground of cruelty.

Filed by

(Avinash Nandan Sharma)

Advocate

93, Lawyers Chamber, Supreme Court of India

New Delhi New Delhi. Mobile – 8800794128

Date : 30.09.2020

AUTHORITIES RELIED UPON:

1. Nirmala Devi Vs. Ved Prakash , AIR 1993 HP 1, Himachal Pradesh High Court
2. G. Dastane Vs Mrs S. Dastane, 1975 AIR 1534
3. Shubhash Harnarayanji Laddha Vs. State of Mahrashta 2 SCC (Cri.) 122
4. J. Yashoda V. K. Shobha Rani, AIR 2007 SC 1721 SC

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