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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 2 OF 2017
APPELLANT :- Mr. Prashant T. Churhe, Aged about 39
O.Petitioner on R.A. years, Occu. Service, R/o Flat No.13, Bldg.
No.4/B, 3rd Floor, Plot No.6, NNP Colony,
Film City Road, Goregaon (E), Mumbai-
400 065. At present R/o FC-708, Mayur
Vihar-III, Delhi-96.
...VERSUS...
RESPONDENT :- Mrs. Shweta Prashant Churhe, Aged about
O.Respondent on R.A. 34 years, Occ. Doctor, R/o C/o Shri
G.N.Badghare, 145, Parekh Layout,
Dronacharya Nagar, Near N.I.T. Garden,
Trimurti Nagar, Nagpur.
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Mr.A.B.Bambal, counsel for the appellant.
Mr. P. R. Wagh, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI
, JJ.
DATED : 05.04.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) The family court appeal is admitted and heard finally at the stage of admission, as the record and proceedings were called and a notice was served on the respondent that the appeal could be admitted and decided finally at the stage of admission.
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2. By this family court appeal, the appellant-husband challenges the judgment of the Family Court, Nagpur dated 01/03/2016, dismissing the petition filed by the appellant for a decree of divorce on the ground of cruelty. According to the appellant, the Family Court could not have passed a decree of judicial separation and ought to have granted a decree of divorce after considering the evidence on record.
3. Few facts giving rise to the family court appeal are stated thus :-
The appellant-husband (hereinafter referred to as the 'husband' for the sake of convenience) and the respondent-wife (hereinafter referred to as the 'wife') were married at Nagpur on 27/01/2006 as per the Hindu rites and customs. After the marriage, the parties started residing at Goregaon where the husband is working as an anchor in television-news channels in Mumbai. In the petition filed by the husband for a decree of divorce on the ground of cruelty, it was pleaded that from the first day of the marriage, the wife told the husband that she was not interested in marrying him. It is pleaded that the wife did not have the knowledge of preparing food and she used to prepare tasteless, salty or spicy food. It is pleaded that the wife did not have the sense of dressing properly and conversing with the friends of ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:24:00 ::: 0504FCA2.17-Judgment 3/11 the husband. It is pleaded that the wife was a subject of ridicule in the family functions but she was not interested in changing her lifestyle. It is pleaded that the wife was not interested in going out with the husband and always wished to stay in the matrimonial home. It is pleaded that though the wife was suffering from a mental disorder, she did not cooperate with the husband and was not ready to go to the psychiatrist. It is pleaded that the wife was careless and while ironing the clothes she used to burn them. It was pleaded that the wife used to disclose the personal matters to the other relatives. It is pleaded that the wife used to remove cash from the wallet of the husband without his permission and used to read the messages received by the husband on his cellphone. It is pleaded that the wife used to make huge purchases by removing the debit card from the wallet of the husband. It is pleaded that on 20/10/2010, the wife went out of the house for purchasing some household articles and did not return to the matrimonial house. It is stated that when the husband searched the cupboards, he was shocked to find that all the apparels, ornaments and important documents of the wife were missing. It is pleaded that the husband then realised that the wife had left the matrimonial home on the pretext of purchasing vegetables from the vegetable vendor. It is pleaded that the wife had left the minor daughter, who is aged about three years in the matrimonial home while leaving the house and ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:24:00 ::: 0504FCA2.17-Judgment 4/11 though the husband called on the cellphone of the wife, the wife did not receive the calls. It is pleaded that the husband was very anxious and therefore he lodged a report in respect of the disappearance of the wife in the police station. It is pleaded that on the next date he received a call from the police station and was informed that the wife had started residing at her parental house at Nagpur. It is pleaded that the husband then went to Nagpur with his parents and relatives on 24/10/2010 and was shocked to find that the house of his in-laws was locked. It is pleaded that the husband tried to contact the wife, but the wife did not receive his calls. It is pleaded that the acts on the part of the wife caused great mental agony to the husband. It is pleaded that the husband was entitled to a decree of divorce on the ground of cruelty.
4. The wife filed the written statement and denied the claim of the husband. After denying the allegations levelled by the husband against the wife, the wife pleaded that she had not left the matrimonial home on 20/10/2010 after informing the husband that she wanted to purchase vegetables. The wife pleaded that the husband had subjected her to terrible assault and torture on 20/10/2010 and he and his mother had locked her in the house and kept her without food and water. It is pleaded that fearing danger to her life, the wife escaped from the house and came to Nagpur by train. It is pleaded that after ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:24:00 ::: 0504FCA2.17-Judgment 5/11 returning to Nagpur, the wife had lodged a report with the Mahila Cell in the police station at Nagpur and had also sent a written complaint to the police station at Goregaon, Mumbai. The wife admitted that she had filed a petition for judicial separation and that she had withdrawn the same. The wife sought for the dismissal of the petition.
5. On the aforesaid pleadings of the parties, the Family Court framed the issues and on an appreciation of the evidence on record, passed a decree of judicial separation after holding that the husband had failed to prove that the wife had treated him with cruelty.
6. Shri Bambal, the learned counsel for the husband, submitted that it would be necessary to remand the matter to the Family Court, as the Family Court has not considered the evidence tendered by the husband that the wife had left the matrimonial home on 20/10/2010 on the pretext of purchasing vegetables and some other articles and had joined the company of her parents at Nagpur. It is submitted that the Family Court failed to consider the case of the husband that the wife had dropped her three years old daughter in the matrimonial home while leaving the house on 20/10/2010. It stated that while leaving the matrimonial home, the wife had carried her gold ornaments, important documents, photographs, pen drives, CDs., DVDs, ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:24:00 ::: 0504FCA2.17-Judgment 6/11 etc. from the matrimonial home. It is submitted that the Family Court had failed to consider that the husband was required to search for the wife in the nearby locality but since he could not locate her and she did not receive his calls, he was required to lodge a report in the police station. It is stated that the Family Court had failed to consider that the act on the part of the wife of leaving the matrimonial home on the pretext of purchasing vegetables and joining the company of her parents after leaving behind her only daughter, who was three years old would tantamount to cruelty. It is stated that the non-consideration of the material pleadings and evidence would vitiate the judgment of the Family Court. It is submitted that on 21/10/2010, the husband became aware that the wife had joined the company of her parents and this important aspect has not been considered by the Family Court while deciding the petition filed by the husband for a decree of divorce on the ground of cruelty. It is stated that the act on the part of the wife of leaving the matrimonial home at Goregaon, Mumbai on the pretext of purchasing vegetables and going to her parents at Nagpur without informing the husband would surely be an act of cruelty. It is submitted that at least the Family Court ought to have considered this aspect of the matter before holding that the other acts on the part of the wife would reflect only the normal wear and tear, in a matrimonial household and would not be considered to be the acts of cruelty. It is ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:24:00 ::: 0504FCA2.17-Judgment 7/11 submitted that the matter may be remanded to the Family Court for reconsidering the evidence of the parties, as failure on the part of the Family Court to consider the material evidence would vitiate the judgment of the Family Court.
7. Shri Wagh, the learned counsel for the wife, supported the judgment of the Family Court. It is submitted that the Family Court has rightly held that the wife did not treat the husband with cruelty. It is submitted that though it is the case of the husband that the wife had left the house without informing him on 20/10/2010, as a matter of fact, the wife was tortured at the hands of the husband and his mother on 20/10/2010 and hence fearing danger to her life, she was compelled to leave the matrimonial home and return to Nagpur to her parental home. It is however fairly admitted that the Family Court has not considered the case of the husband and the evidence tendered by him about the wife leaving the matrimonial home on 20/10/2010 without informing him that she was going to Nagpur and by leaving her minor daughter at Mumbai in the judgment. It is stated that an appropriate order may be passed in these circumstances of the case.
8. On hearing the learned counsel for the parties, it appears that the following points arise for determination in this family court appeal.
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(I) Whether the Family Court was justified in dismissing the
petition filed by the husband without considering the evidence pertaining to the incident dated 20/10/2010? (II) Whether the matter is liable to be remanded to the Family Court?
(III) What order?
9. We have already narrated the pleadings of the parties in the earlier part of the judgment. Apart from levelling several allegations against the wife, the husband has pleaded in paragraphs-38 to 41 of the petition that the wife had left the matrimonial home on 20/10/2010 on the pretext that she had to purchase some vegetables and articles. The husband has pleaded that after about two hours when the wife did not return, the husband noticed that the wife had carried all her belongings, gold ornaments, important documents, wedding photographs, pen drives, cards, CDs. DVDs and other belongings from the matrimonial home. It is pleaded that the wife had left the matrimonial home on the pretext that she had to purchase vegetables and had joined the family of her parents at Nagpur without his consent, knowledge or permission. It is pleaded that the brother of the wife had helped her in removing her belongings from the matrimonial home. It is pleaded that the husband had to search for the wife in the nearby localities and while doing so he ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:24:00 ::: 0504FCA2.17-Judgment 9/11 had to carry his minor daughter with him. It is pleaded that the husband could not locate the wife despite great efforts. It is pleaded that the husband tried to call the wife on cellphone a number of times but the wife did not receive the calls. It is pleaded that the husband was very tense and anxious and hoped that the wife would return back to the matrimonial home at the earliest, as she had left the minor daughter aged about 3 to 4 years in the matrimonial home. It is pleaded that at the relevant time, the minor child had her exams and the husband became more tense. It is pleaded that on the next day i.e. on 21/10/2010, the husband received the call from Dindoshi Police Station that the wife had reached to her parental house at Nagpur. It is pleaded that the husband again tried to contact the wife on her cellphone but the wife did not receive the calls. It is pleaded that the husband then visited the parental home of the wife at Nagpur personally on 24/10/2010 but the house was locked and he did not secure any information about the whereabouts of the wife and her parents. It is pleaded that the husband tried to call the wife and also his in-laws on their cellphone but neither the wife nor his in-laws received the phone calls. It is pleaded that the husband was therefore required to return to Mumbai without meeting the wife. Though the aforesaid facts are pleaded in paragraphs-38 to 41 of the petition filed by the husband and though the husband has tendered oral and documentary evidence to ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:24:00 ::: 0504FCA2.17-Judgment 10/11 prove the said facts, the Family Court has not even referred to the said facts in the judgment. The Family Court has observed in paragraph-11 of the judgment that the allegations made by the husband that the wife did not prepare the food properly, did not have a dressing sense, did not go out with the husband, disclosed the matters between the parties to the relatives, removed cash from the wallet of the husband, are incidents reflecting general wear and tear. The Family Court observed that the said acts on the part of the wife were not so serious. In paragraph-12 of the judgment, the Family Court observed that though the husband has pleaded that the wife was not mentally stable, the husband has failed to prove the said fact. Some reasons are recorded by the Family court in paragraph-12 for holding so. From a reading of the short judgment rendered by the Family Court it appears that the Family Court has not discussed the evidence of the parties in detail and has not discussed the evidence tendered by the husband in respect of the incident dated 20/10/2010 at all. Both the husband and the wife had different stories to tell about the incident dated 20/10/2010. It was necessary for the Family Court to have considered the version of the husband in respect of the incident dated 20/10/2010 as also the version of the wife. The Family Court however did not consider the pleadings of the husband in paragraph-36 to 41 of the petition and the evidence tendered by him to substantiate the said pleadings. It was necessary for ::: Uploaded on - 11/04/2017 ::: Downloaded on - 12/04/2017 00:24:00 ::: 0504FCA2.17-Judgment 11/11 the Family Court to deal with the material pleadings and evidence on the issue of cruelty, as the husband has filed the petition for a decree of divorce on the said ground. As rightly stated on behalf of the husband, the non-consideration of the material evidence would vitiate the judgment of the Family Court. In the circumstances of the case, it would be necessary to remand the matter to the Family Court for deciding the petition filed by the husband afresh on merits, in accordance with law.
10. Hence, for the reasons aforesaid, the family court appeal is partly allowed. The judgment of the Family Court is hereby set aside. The Family Court is directed to decide the petition filed by the husband, in accordance with law, as early as possible and positively within six months. The parties undertake to appear before the Family Court, Nagpur on 24/04/2017 so that service of notice on the parties could be dispensed with. Order accordingly. No costs.
The record and proceedings be remitted to the Family Court at the earliest.
JUDGE JUDGE
KHUNTE
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