MINOR INCONSISTENCY IN WIFE’S STATEMENT DURING CROSS EXAMINATION BEFORE FAMILY COURT DOES NOT MAKE HER AN UNRELIABLE WITNESS: DELHI HC

While glossing over minor inconsistencies, the Delhi High Court in an extremely learned, laudable, landmark and latest judgment titled Rahul Kesarwani vs Sunita Bhuyan in MAT.APP.(F.C.) 75/2020 that was reserved on August 5, 2021 and then finally delivered on December 1, 2021 has clearly, cogently, categorically and convincingly observed that minor inconsistency in a statement made by a wife during cross-examination by husband before Family Court in divorce proceedings does not make her an unreliable witness. It must be mentioned that the Bench of Justice Vipin Sanghi and Justice Jasmeet Singh of Delhi High Court upheld the judgment and decree passed by a Family Court whereby a petition was filed by the wife for dissolution of marriage under the Section 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 was allowed, and the marriage between the parties was dissolved. The Court very rightly said that, “We do note there was indeed a minor inconsistency in the statement of the Respondent-wife during her cross examination pertaining to the payment of Household expenses. However, the same is a minor aberration and does not make the Respondent-wife an unreliable witness.”

To start with, the ball is set rolling in para 1 of this brief, brilliant, bold and balanced judgment authored by Justice Jasmeet Singh for himself and Justice Vipin Sanghi sets the ball rolling by first and foremost pointing out that, “The present appeal has been filed by the Appellant (Husband) under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 challenging the judgment and decree dated 30.11.2019, whereby the petition filed by the Respondent for dissolution of Marriage under Section 13(1)(ia) and (iii) of the Hindu Marriage Act, 1955 has been allowed, and the marriage between the parties has been dissolved.”

For clarity’s sake, the Bench then puts forth in para 2 that, “At the very outset, it must be noted that we on 15.07.2021, had interacted with the parties to explore the possibility of a mediated settlement. However, it was of no avail.”

To put things in perspective, the Bench then envisages in para 3 that, “The necessary facts, giving rise to the present appeal are that the Appellant-husband and the Respondent-wife got married on 06.05.2011 at Delhi according to Hindu rites and ceremonies. The parties resided together at J1/226, DDA Flats, Kalkaji, New Delhi till 10.07.2011, after which the respondent left the matrimonial home.”

As it turned out, the Bench then enunciates in para 4 that, “On 01.09.2012, the Respondent filed a petition under Section 13(1)(ia) and 13(iii) of the Hindu Marriage Act, 1955. In the petition, the Respondent claimed that the parties did not consummate their marriage; that there were dowry demands by the appellant and his family members; that the appellant fought with her constantly; that the appellant used to torture her; that he did not spend any amount towards household expenses and; lastly that he was suffering from a Bi-Polar disorder which he concealed from her before marriage.”

Be it noted, the Bench then enunciates in para 5 that, “The Family Court found that:

i. the respondent/wife has brought sufficient material on record and given specific incidents of cruelty on the part of the appellant/husband

ii. The respondent proved that the appellant was abusive, and was in the habit of picking up quarrels frequently.

iii. The appellant abused the respondent making the allegations that she was having sexual relationship with her brother and father.

iv. The appellant was a patient of “PSYCHOMOTOR ACTIVITY, BIPOLAR DISORDER AND PERSONALITY DISORDER MULTIPLETRAIT”.

v. The appellant did not show any interest, whatsoever, in establishing conjugal relationship with the respondent.

vi. The appellant used to insult the respondent before relatives/domestic helps.

vii. The appellant had assaulted, beaten, and tortured the respondent continuously, accusing her of bad character suspecting of her having affairs.

viii. The appellant did not have physical intimacy with the respondent for long.

ix. On 10.07.2011, when the respondent told the appellant that house rent and other bills for two months have not been paid, the appellant asked the respondent to bring Rs. 1.0 lac from her mother and when she refused, the appellant threw utensils and glasses on the floor.

x. The appellant threatened the respondent to butcher her with a knife. The respondent was scared of him. After 10.07.2011, the parties did not have any conjugal relationship.

xi. The conduct of the appellant by no stretch of imagination, could be termed as ordinary wear and tear of matrimonial life. The appellant subjected the respondent with continuous ill-treatment. The contemporaneous evidences, in the form of complaints filed by the respondent with the police against the behaviour of the appellant were relied upon.

xii. The above series of acts/incidents would constitute the mental cruelty, which is a ground for divorce under Section 13(1)(ia)of Hindu Marriage Act.”

Most notably, the Bench after hearing the learned counsel for the appellant and having gone through the impugned judgment and the documents placed on record before us as stated by the Bench in para 7, the Bench then envisages in para 8 that, “The Appellant has stated that the Respondent was not a reliable witness and the Family Court erred in relying upon her statements. However, we do not agree with this submission of the Appellant, as not only had the Respondent substantiated and supported her claims by way of her Evidence Affidavit and Written Submissions, besides being cross examined before the Family Court. The Family Court has considered the said aspect in the impugned judgment as follows:

“40. I agree with the contention of Ld. Counsel for the respondent that in the evidence affidavit, the petitioner has narrated some facts/incidents that the respondent burnt her with cigarette, once fractured her hand by beating her with chimta, her parents-in-law refused to interfere even when she told them that the respondent was getting anti-social people at home, which facts she has not stated in her petition or the replication and that in view of the law laid down in the case Prakash Ratan lal (supra), the evidence beyond pleadings must be rejected but besides above, there is enough direct and circumstantial evidence, which substantiate the allegations of the petitioner that she was subjected to mental & physical cruelty as discussed in the preceding paras. In the instant case, she has given the specific instances, how she was subjected to mental & physical cruelty.”

No specific reason has been pointed out by the appellant to claim that the Respondent was not a reliable witness. Her cross examination by the appellant does not show that she faltered or could not withstand the same. No specific contradictions have been brought forth by the appellant, in the testimony of the Respondent, to support his submissions that the Respondent has not a truthful and reliable witness. It is a well settled proposition that pleadings and evidence have to be read as a whole and no single instance can be picked and read in isolation. The impugned judgment in above paragraph, has noted that there are factual instances found in the evidence, which are not pleaded in pleadings. However, those incidents are not the fulcrum of the findings of the Family Court that the Respondent has been subject to mental and physical cruelty by the Appellant.

One incident, not having been pleaded or having certain inconsistencies, cannot make an individual an unreliable witness. The test of unreliable witness has been laid down in Kuria v State of Rajasthan (2012) 12 SCC 433 which states:

“30. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis for doubting the case of the prosecution. The courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies.

34. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated.”

The facts of the present case do not meet the said test. We do note there was indeed a minor inconsistency in the statement of the Respondent-wife during her cross examination relating to the payment of Household expenses. However, the same is a minor aberration and does not make the Respondent-wife an unreliable witness. Minor aberrations are normal to occur, and cannot be a reason to discard the entire testimony of a witness.”

Equally notable is what is then stated in para 19 that, “The Appellant has argued that for setting aside the judgment:-

a) There must be non-appreciation of evidence to a such material degree which changes outcome of the verdict; or

b) Some evidence must have been misread, mis- appreciated, or misconstrued in such a way, which if read in proper perspective changes the entire verdict; or

c) Some material evidence has totally been omitted to have been read.

It is argued that the Appellant has been able to meet the above tests. If the contradictions and mis-appreciations are of a minor nature, or do not change the essence of the case of the concerned party, the minor aberrations are to be ignored by Appellate Court. To justify interference, there must be such substantial inconsistencies and contradictions of material facts that, if seen in the proper perspective, they would change the entire essence of the judgement. Inconsistencies of such a minor nature neither change the thread, nor the essence of the judgment. The contradictions pointed out by the Appellant are not so serious as to change the finding, persuading us to set aside the impugned judgment, nor are they so grave that they violate the principles of natural justice.”

Quite candidly, the Bench concedes in para 33 that, “The continuation of the marriage between the parties would cause undue harm to not only the Respondent/wife, but also the Appellant/husband. There has been a complete breakdown of marriage.”

Needless to say, the Bench then postulates in para 34 that, “It is clear from a bare perusal of the matter at hand that the marriage is beyond repair. The continuity of this marriage is fruitless, and is rather causing grief and harm to both the parties.”

As a corollary, the Bench then observes in para 35 that, “In this view of the matter, we do not find ourselves inclined to grant the Appellant’s prayer against the dissolution of marriage and find no infirmity in the impugned order dated 30.11.2019.”

Finally, the Bench then observes in para 36 that, “Accordingly, the present appeal is dismissed being devoid of merits.”

To round it up, the Bench of Justice Vipin Sanghi and Justice Jasmeet Singh of Delhi High Court thus made it absolutely clear in this notable judgment that minor inconsistency in wife’s statement during cross examination before family court does not make her an unreliable witness. While noting that the matrimonial disputes between a husband and a wife are incapable of following the strict parameters of evidence, the Court said that in cases where there are allegations of cruelty, there can be no parameters that the court can follow. The Delhi High Court too thus upheld what the Family Court had held and was also of the view that numerous complaints and specific incident of cruelty, both mental and physical, showed the true conduct of the husband, which could not be expected in any healthy matrimonial relationship. It also further aptly observed that the marriage was beyond repair and continuity of the same was fruitless. As a consequence, we thus see that the Delhi High Court finally upheld the impugned order and dismissed the appeal filed by the husband!

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