Madhu Rani vs Gagan Tyagi

Aruna Suresh, J.—Under challenge in this appeal is the judgment and decree of the Additional District Judge, whereby petition of the respondent u/s 13(1)(i-a) of the Hindu Marriage Act (hereinafter referred to as ''HM Act'') was allowed and marriage between the parties was dissolved by a decree of divorce.

Briefly, facts of the case are that parties to the petition were married according to Hindu Rites and Ceremonies on 21st February, 2002. Out of their wedlock, a female child was born on 27th September, 2003. The said child is in care and custody of the respondent (herein). Appellant allegedly committed acts of cruelty towards respondent on various occasions which made it difficult for him to continue with the marriage and parties separated on 25th October, 2004. Hence, petition was filed seeking divorce on the grounds of cruelty.

Appellant contested the petition. On the pleadings of the parties, Trial Court framed the following issues on 12th March, 2009:-

Whether the respondent has treated the petitioner with cruelty? OPP

Relief.

Respondent has averred following specific instances of cruelty committed by the Appellant:-

(1) Appellant had concealed that she had conceived prior to her marriage and got her pregnancy aborted from a well known hospital in Ghaziabad, which fact he came to know when he took her to gynecologist for her check-up because she was unable to conceive after marriage.

(2) Appellant concealed that she had been suffering from tuberculosis and breast cancer.

(3) On 24th October, 2004 i.e. after marriage, she caught hold of the Respondent from his collar and pulled his hair and when his mother tried to intervene, Appellant caught hold of her hair and dragged her and thereafter on 25th October, 2004 she left the matrimonial home after taking her jewellery, stridhan, etc. without informing the respondent or his family members. She also left behind the daughter, who was just about one year old, at the mercy of family members of the respondent.

Appellant did not cross-examine the respondent regarding incident of 24th October, 2004 when she had allegedly given beatings to the respondent and his mother. It is of significance that Appellant also did not cross-examine the respondent regarding allegation that before marriage she got herself aborted. Similarly, there is no specific cross-examination of the respondent regarding concealment of serious ailments suffered by her before marriage.

Under these circumstances, Trial Court rightly considered non cross-examination of respondent by the Appellant on above said acts of cruelty, as an admission of truthfulness of the said allegations. It is trite law that in the absence of cross-examination on a point by the opposite party, statement on that point made in examination-in-chief is to be taken as true. Unless credibility of the witness is impeached by giving an opportunity to explain his statement, he cannot be considered as unworthy of reliance. Since there is no cross-examination of the respondent and his evidence has been allowed to go unchallenged on the above said acts of cruelty. It could be safely accepted as correct, which in fact the Trial Court did.

Though it was not pleaded in the written statement, but during cross-examination of the respondent, the Appellant tried to impeach his character when it was suggested that he had illicit relationship with a girl named Rashmi and also that there was dowry demand for a sum of Rs. 50,000/- from her parents. There seemed to be an intentional attempt on the part of the Appellant to impeach character of the respondent and his father with a view to cause mental torture and harassment. Therefore, such like cross-examination beyond pleadings can also be considered as an act of cruelty on the part of the Appellant. These must be false and baseless allegations made by the Appellant against the respondent and his father. Such like accusations and character assassinations made by a spouse against the other, made or suggested in the cross-examination amounts to cruelty in law.

Under these circumstances, it is concluded that Trial Court assessed evidence of the parties in the right perspective to hold that Appellant had committed acts of cruelty against the respondent within the meaning of Section 13(1)(i-a) of the Act.

Hence, I find no merits in the appeal and it is accordingly dismissed in limine.