FCA.288.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
FAMILY COURT APPEAL NO.288 OF 2014 Shri Jivraj s/o Prabhakar Kale Aged about 40 years, occu: service R/o Itwari, Mirchi Bazaar, Nagpur. ..APPELLANT v e r s u s Smt. Smita Jivaji Kale Aged about 34 years, occu. NIL R/o C/o Sandeep Wade, Indira Colony, Bhagwannagar Nagpur. ...RESPONDENT ...........................................................................................................................
Mr. Wilson Mathew, Advocate for the appellant Mr. B.W. Patil, Advocate for the respondents ...........................................................................................................................
CORAM: SMT. VASANTI A. NAIK &
MRS . SWAPNA JOSHI, JJ
.
DATED : 13 & 17 April, 2017
th th
ORAL JUDGMENT: (PER SMT. VASANTI A. NAIK, J.)
1. By this Family Court Appeal, the appellant-husband has challenged the judgment of the Family Court, Nagpur, dated 25.03.2013 allowing the petition filed by the respondent-wife for grant of maintenance and dismissing the petition filed by the husband for grant of a decree of divorce on the ground of cruelty.
2. The appellant-Husband and the respondent-Wife were married on ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 2 07.06.2007 as per the rights prevailing in their community. A daughter is born from the said wedlock. In the petition filed by the husband for a decree of divorce, it is pleaded that the wife behaved properly with the husband for a period of fifteen days and thereafter started behaving abnormally. It is pleaded that the wife is a quarrelsome lady and as she belongs to a rich family, she could not adjust with the husband. It is pleaded that the wife always picked up quarrel with the husband and she threatened the husband that she would commit suicide or leave the house. It is pleaded that initially the husband and his mother did not consider the matter to be so serious but, since the wife did not change her ways, the husband realized that it was not possible to reside with the wife. It is pleaded that while leaving for service, the wife never prepared the breakfast or food for the husband. It is pleaded that the wife used to make vulgar comments on the appellant and his mother. It is pleaded that the wife used to ask the husband that they should reside separately and away from his mother. It is pleaded that due to the quarrelsome nature of the wife, the husband was unable to attend the office on several occasions and was continuously under mental stress. It is pleaded that the wife was behaving badly with the relatives of the husband. It is pleaded that though the husband and his family members tried to make the wife understand that she should change her ways, the wife did not mend her ways. It is pleaded that the wife left the matrimonial home when she was pregnant and when the girl child was ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 3 born, the wife did not inform the husband about the birth of the child. It is pleaded that neither the wife nor her family members permitted the husband to meet the new-born child and when the husband went to the parental home of the wife, he was not permitted to enter the house. It is pleaded that since the wife belongs to a rich family, she always used to abuse the husband for not providing luxurious and lavish life for her. It is pleaded that the wife returned to the matrimonial home on 21.10.2007 when the husband and his mother went to pick her up from her parental home but, only after about five days, the wife again picked up quarrel with the mother of the husband and the husband, and after abusing them in very vulgar and filthy language, left the house. It is pleaded that in June-2008, the brother of the wife came along with some goondas to the residence of the husband, abused the husband and his mother in very vulgar and filthy language and when the husband questioned them as to why they were hurling the abuses, the goondas picked up the sticks and assaulted the husband and his mother. It is pleaded that the acts on the part of the wife caused great mental trauma to the husband and, in the circumstances of the case, the husband was entitled to a decree of divorce on the ground of cruelty.
3. The wife filed the written statement and denied the case of the husband. Every adverse allegation that was levelled against the wife was denied by her. The wife pleaded that she was admitted in Lata Mangeshkar ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 4 Hospital during her pregnancy and thereafter she resided in her parents' house for medical treatment. It is pleaded that within a short time, ie, on 27.10.2007, the husband and his relatives, ie, his mother and sister forcibly drove her out from the matrimonial home for not fulfilling their unlawful demands. It is pleaded that since the wife was driven out from the matrimonial home, she was forced to reside in her parental home. It is pleaded that the husband had forcibly obtained the gold ornaments of the wife, valued Rs.50,000/- along with clothes and sarees and after mercilessly beating her, had driven her out of the house. It is pleaded that the wife was treated with cruelty immediately after a few days of the marriage for not fulfilling the illegal demands. It is pleaded that the wife, her mother and her close relatives tried to convince the husband but, the husband did not allow the wife to reside in the matrimonial home. The wife sought for the dismissal of the petition. The wife had also filed a petition for grant of maintenance but, we are not referring to the pleadings and the part of the judgment which directs the husband to pay the monthly maintenance to the wife and child as the husband has not challenged that part of the decree passed by the Family Court.
4. On the aforesaid pleadings of the parties, the Family Court framed the issues. The husband tendered his evidence and also examined Shri Tanmay Giri and Vinayak Hadke. The wife examined herself and closed the evidence ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 5 on her side. On an appreciation of the evidence on record, the Family Court dismissed the petition filed by the husband. The husband has challenged the judgment, so far as it rejects the petition filed by the husband for a decree of divorce on the ground of cruelty.
5. Shri Mathew, the learned counsel for the husband, submitted that the Family Court was not justified in rejecting the petition filed by the husband. It is submitted that the husband had proved the allegations levelled by him against the wife and the acts on the part of the wife, as pleaded by the husband, were enough to prove that the wife had treated him with cruelty. It is submitted that the wife had not shown her willingness to join the company of the husband by making a statement in the written statement in that regard. It is submitted that the Family Court was not justified in dismissing the petition for divorce on the ground that the husband had failed to prove the allegations levelled by him against the wife. It is submitted that though the husband had not sought a decree of divorce on the ground of desertion, the husband is entitled for a decree of divorce on the ground of desertion. It is submitted that though in the petition, it was not specifically pleaded that the wife had deserted the husband and was staying away from him without any just or reasonable excuse, it is apparent from the evidence of the parties that the wife had left the company of the husband without any reasonable excuse. It is ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 6 submitted that the wife had stated that she was ready to join the company of the husband but the statement of the wife was hollow and the Court did not consider whether the wife really intended to join the company of the husband. It is submitted that the wife had till the tendering of the oral evidence never expressed her intention to reside with the husband and even during the pendency of the proceedings, she had not filed a petition for restitution of conjugal rights. It is stated that in the circumstances of the case, the Family Court was not inclined to grant a decree of divorce on the ground of cruelty, the Family Court ought to have granted a decree of divorce on the ground of desertion. It is stated that after the filing of the petition by the husband, the wife has mischievously filed proceedings against the husband and his family members under the Protection of Women from Domestic Violence Act and has made several prayers therein. It is submitted that the conduct on the part of the wife to file the proceedings under the Protection of Women from Domestic Violence Act and to claim that she is ready to reside with the husband in the matrimonial home, cannot go hand in hand. It is submitted that since the parties are residing separately for a period of nine years, this Court may grant a decree of divorce, as the marriage between the parties is irretrievably broken down. The learned counsel submitted that in the circumstances of the case, the decree of divorce needs to be granted.
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FCA.288.14 7
6. Shri Patil, the learned counsel for the wife, supported the judgment of the Family Court. It is submitted that the Family Court has after considering the evidence on record, recorded a clear finding that the husband has failed to prove that the wife had treated him with cruelty. It is submitted that the Family Court has, while holding that the husband has failed to prove his case on the ground of cruelty, appreciated the evidence tendered by the parties in a just and proper manner. It is submitted that since the petition was filed within a period of two years of separation of the husband and the wife, the Family Court rightly held that the petition under section 13(1)(ib) was not maintainable. It is submitted that apart from mentioning the provisions of Section 13(1)(ib) in the cause title, the husband had not pleaded in the petition that the wife was residing separately from the husband for a period of two years without any just or reasonable excuse. It is submitted that there are no pleadings pertaining to desertion by the wife in the petition filed by the husband. It is submitted that the Family Court, rightly came to a conclusion that the husband had treated the wife with cruelty and the husband was taking advantage of his own wrong. It is submitted that even after the judgment was rendered by the Family Court, the wife took her daughter to the matrimonial home with an intention to reside with the husband but, the husband did not permit her to enter into the house and filed the suit for injunction restraining the wife from entering into the matrimonial home after making a complaint ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 8 against the wife in the police station. It is submitted that in the proceedings filed by the wife against the husband and his family members under the Protection of Women from Domestic Violence Act, the wife has only sought a right of residence and has sought some compensation. It is submitted that the wife has not made any prayer that the husband should be punished. It is submitted that though the wife desired to join the company of the husband and made efforts in that regard from time to time, the husband had not permitted her to join his company and in this background, it cannot be said that the marriage between the parties is irretrievably broken down and the parties are living separately for about nine years. It is submitted that in the circumstances of the case when the Family Court has considered the evidence of the parties in the right perspective, the Family Court Appeal is liable to be dismissed. The learned counsel sought for the dismissal of the family court appeal.
7. On hearing the learned counsel for the parties, it appears that the following points arise for determination in this Family Court Appeal :- I) Whether the husband has proved that the wife had treated him with cruelty?
II) Whether the husband is successful in proving that the wife had deserted him without any just or reasonable excuse?
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FCA.288.14 9 III) Whether the husband is entitled to a decree of divorce?
IV) What order?
8. To answer the aforesaid points, it would be necessary to consider the pleadings of the parties and the evidence tendered by them. We have narrated the pleadings of the parties in detail in the earlier part of the judgment. The husband entered into the witness box and reiterated the facts stated by him in the petition, in his examination-in-chief. The husband was cross-examined on behalf of the wife. The husband admitted in his cross-examination that he had not filed any documents on record to show that the brother of the wife and others had been to the house of the husband and had assaulted him and his family members. The husband admitted that he had not lodged any complaint before the police authorities in regard to the incident of the brother of the wife assaulting him and his family members. The husband admitted in his cross- examination that after he issued a notice to the wife on 28.11.2008, the wife replied to the said notice and stated therein that the husband should come to her parental home to take her back to the matrimonial home. The husband admitted that he did not go the parental home of the wife to bring her back to the matrimonial home. The husband admitted that on 27.10.2007, when the wife left the matrimonial home he did not issue any notice to her asking her to return to the matrimonial home. The husband admitted that the wife's father ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 10 was no more and the wife was not doing any job either in government or private sector. The husband denied the suggestion that on 04.11.2007, 05.11.2007 and 06.11.2007, the wife and her mother had come to the matrimonial home so that the wife could reside with him. The husband admitted that prior to 21.10.2007, the wife had once gone for medical check- up and then to her mother's place but, she had returned to the matrimonial home. The husband denied the suggestion that he used to demand Rs.50,000/- from the family members of the wife for paying the installments of loan. The husband denied the suggestion that on the failure on the part of the wife to fulfill the demand, he had assaulted her and expelled her from the home. The husband denied that the wife had lodged a report against him. The husband admitted that he had received a notice from Mahila Cell attached to the Sakkardara police station and that he had appeared before the Mahila Cell. The husband admitted that the wife is looking after the education of their daughter. He however denied the suggestion that the petition was filed by him with a view to harass her. The husband had denied that he had levelled false allegations against the wife that she used to demand a cellphone and that she never cooked food for him. The husband denied that he had filed a false affidavit.
9. The husband examined Shri Tanmay Giri, who knew the husband and ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 11 his family members. The witness stated in his examination-in-chief that in June-2008, while he was returning to his house, he saw some people abusing the husband and his mother. The witness stated that the wife was present there and there were some goondas along with the brother of the wife. The witness further stated that the goondas assaulted the husband and his mother with sticks and he tried to control the mob. Tanmay Giri was cross-examined on behalf of the wife. He admitted in his cross-examination that the husband was one of his friends and, therefore, he was familiar with the husband. He admitted that on two-three occasions, he had visited the house of the husband. He stated that he had not attended the marriage of the husband. He stated that he does not know whether in June-2008, the husband and the wife were living together or not. He further admitted that the counsel for the husband brought a typed affidavit of the witness and, thereafter he had signed below it. He stated that he was called to depose about the incident as it occurred in his presence. He admitted in his cross-examination that he did not inform the police about the incident. He stated in his cross-examination that he tried to calm down the mob to certain extent. He denied the suggestion that no such incident had occurred and he was falsely deposing at the instance of the husband.
10. The husband examined Vinayak Hadke to prove that in the month of ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 12 June-2008, the wife, her brother and three-four goondas came to the house of the husband, they abused the husband and his mother and started beating them with sticks. In the cross-examination, Vinayak Hadke admitted that his relationship with the husband is cordial. He stated that he did not know whether any police complaint was lodged in respect of the incident of June-2008 in the police station. He stated that he cannot state any reason for not lodging of the complaint. He admitted that if there is some noise at the outer door of the house of the husband, the sound cannot be heard from within his house. He stated that he was present at the marriage of the husband but he did not know that the wife had left the matrimonial home. He stated that there were some disputes between the parties but, he cannot state as to when the wife left the matrimonial home. He admitted that he came to the Court on the call of the husband but, he denied the suggestion that the incident of June-2008, did not occur in his presence.
11. The wife examined herself and closed the evidence of her side. The wife reiterated the facts stated by her in the written statement, in her evidence on affidavit. The wife stated in her evidence that initially the husband and his family members treated the wife well but, after a month, they started demanding a sum of Rs. 50,000/- from the parents of the wife, on the pretext that the husband had to pay installments for the plot purchased by him. The wife stated that she was not permitted to watch the Television and was asked ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 13 to do the household work for the entire day. It is pleaded that the husband and his sisters used to harass the wife and also assault her, on occasions. It is pleaded that on 30.03.2008 the husband and his family members had assaulted the wife severely and had threatened that she would be killed. The wife pleaded that on 05.11.2007, the husband and his family members snatched the mangalsootra, gold chain, gold earring and the two finger rings from the wife and dropped her at 12.00 midnight in her paternal home. It is pleaded that the husband did not visit her parental home to see their newly- born daughter and informed the wife that she would not be permitted to reside in the matrimonial home unless she brings a sum of Rs. 50,000/- from her parents. The wife was cross-examined on behalf of the husband. The wife stated that the house of the husband comprised of five rooms - four on the ground floor and one in first floor. The wife denied the suggestion that there was a Television in her bed-room. The wife admitted that before her marriage she was serving in New English High School, as a Computer Teacher. The wife admitted that the quarrel between the husband and the wife was due to the instigation by the sister and the mother of the husband. The wife stated that the mother and the sister of her husband always found fault in her cooking and household work. The wife admitted that she was not always beaten up by the husband under the influence of liquor but, occasionally she was beaten up by him. The wife stated in her cross-examination that her in-laws did not ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 14 permit her to take the meals. She further stated that the husband, his two sisters and his mother always taunted her that she had not brought enough andhan articles from her paternal home. The wife stated that she was assaulted on 27.10.2007 and she did not receive any medical treatment after the said beating. The wife stated that her parents could not fulfill the illegal demand of the husband and, therefore, she was not permitted to reside in the matrimonial home. The wife admitted that in her absence, her mother-in-law used to prepare food for her husband. The wife stated in her cross-examination that though cruelty was inflicted on her by the husband, she was ready and willing to reside with the husband because her mother was old and there was nobody to look after her and her daughter. The wife denied the suggestion that her brother had assaulted the husband. The wife denied that her brother is a criminal and that she or her relatives had not made any attempts for reconciliation.
12. On a reading of the evidence of the parties, it is clear that the husband has not satisfactorily proved that the wife had treated him with cruelty. The husband had stated in his evidence that the wife used to pick up quarrels with the husband without any rhyme or reason and abused the husband and his mother in filthy language. The husband has stated in his evidence that the wife did not do the household work and cook for the ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 15 husband though he had to leave for his office in the morning. The husband has stated that the act on the part of the wife of abusing the husband and his family members in filthy language, caused great agony to the husband. The husband has stated that the wife had left the matrimonial home in October, 2007 and after returning to the same, she had again left the matrimonial home on 27.10.2007 by staying with the family members only for five days. The husband has stated that in the month of June 2008, the brother of the wife had come to the matrimonial home along with three/four goondas and had abused the husband and his mother in filthy language and the husband and his mother were beaten up by the goons with sticks. The husband has stated that the wife had left the matrimonial home without any just or reasonable excuse and was not ready to reside with the husband. The cross-examination of the husband, however, shattered a part of the evidence of the husband. The husband admitted in his cross-examination that he had not filed any documents on record to show that the brother of the wife had assaulted him and his mother by entering into the matrimonial home after the wife had left the same. The husband admitted that he had not lodged any complaint against the brother of the wife in the Police Station. The husband admitted that the expenses for the delivery were borne by the relatives of the wife. The husband further admitted that on 28.11.2008 when he had served a notice on the wife through his counsel, the wife had replied the notice and had asked the ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 16 husband to come to her parental home to take her back to the matrimonial home. The husband admitted that though he had received the reply of the wife, he never went to the parental home of the wife to bring her back to the matrimonial home. The husband admitted that after 28.1.2007 when the wife left the matrimonial home, he never served any notice on the wife asking her to return to the matrimonial home. Though the husband had denied that he had demanded a sum of Rs.50,000/- from the parents of the wife, and had assaulted the wife for not fulfilling the demand, he had admitted that he had received the notice from the Mahila Cell attached to the Sakkardara Police Station and that he had appeared before the Cell. The husband admitted that there was no joint meeting between the relatives on the side of the husband and the relatives on the side of the wife after the wife left the matrimonial home. The husband however denied that he had tendered a false affidavit.
13. The Family Court has weighed the evidence of the husband on one hand and the evidence of the wife on the other, to hold that the husband has failed to prove that wife had treated him with cruelty or deserted him. The admission on the part of the husband that he had not bothered to bring back the wife to the matrimonial home after she left the same on 27.10.2007 shows that the husband was not interested in residing with the wife under one roof. It appears from the evidence of the parties that after the wife ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 17 delivered the child, the husband did not take any steps to bring the wife to the matrimonial home along with the child. The husband had made a show of serving the notice on the wife to return to the matrimonial home without going to the parental home of wife, to bring her back. After the wife asked the husband to take her to matrimonial home along with the child, the husband did not go to the parental home of the wife at all. Apart from his evidence, the husband had examined S/Shri Tanmay Giri and Shri Vinayak Hadke. These witnesses are examined by the husband to prove that in June 2008, the brother of the wife had been to the matrimonial home along with 3/4 goondas and the goondas had hurled abuses and had beaten up the husband and his mother with sticks. Tanmay stated in his evidence that when he was returning to his house some time in June 2008, he saw some people abusing the husband and his mother and they were also beating the husband and his mother with sticks. Tanmay was cross-examined on behalf of the husband. Tanmay admitted that he does not know whether in June 2008 when the incident occurred, the wife was residing with the husband in the matrimonial home. Tanmay fairly admitted in his cross-examination that the counsel for the husband had brought a typed affidavit to him and he had signed the typed affidavit as he was called by the husband to depose on his behalf. He admitted that he did not inform the police about the incident though, according to him, the brother of the wife and other goondas had ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 18 beaten up the husband and his mother in June,2008. It is apparent from the cross--examination of Tanmay that Tanmay has deposed what was told to him by the husband. Tanmay appears to have blindly signed the affidavit that was prepared by the counsel for the husband as he was asked by the husband to depose on his behalf. Vinayak Hadke, the other witness examined on behalf of the husband, has also stated that in June 2008, he had witnessed the brother of the wife and 3/4 other persons beating up the husband and his mother. In his cross-examination, Vinayak admitted that he had not filed any police complaint, in respect of the incident of June,2008. He further admitted that he does not know whether any police complaint was lodged by the husband in respect of the incident. The witness admitted that he did not know the cause of the wife leaving the house of the husband. This witness was not able to state as to when the wife left the matrimonial home. This witness also fairly admitted that he came to the Court on the call of the husband. The Family Court did not believe the evidence of the husband and his two witnesses, especially after considering the evidence of the witnesses in their cross-examination that they were asked by the husband to depose in regard to the incident of June 2008. If at all the brother of the wife and 3-4 goondas had beaten up the husband and his mother, surely there would have been a police complaint in that regard. However nothing is placed on record by the husband, in the form of documents to show that he and his mother were ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 19 beaten by the brother of the wife and the goondas in June, 2008. In the absence of any cogent evidence in that regard, even if we assume that the said evidence is trustworthy and the husband has proved the same, cruelty cannot be attributed to the wife on the basis of the same as it is not the case of the husband that the wife had sent her brother and the goondas to his house so that he and his mother could be beaten up. The Family Court has held and rightly so, that all the other allegations made against the wife are of general nature and no specific instances are stated by the husband in his pleadings, pertaining to the acts of cruelty by the wife. The husband has stated in his evidence that the wife was not preparing the food, that she was not doing the household work properly, that she was abusing the husband and his mother and sisters, etc. It is not stated that on which day and in what manner the wife abused the husband and his relatives and what was the reason for doing so. The Family Court has rightly held that the allegations made by the husband that the wife did not cook the food for the husband and was quarreling with the husband without any rhyme or reason are extremely general in nature and they would not be instances which could prove that the wife had treated the husband with cruelty.
14. The Family Court rightly held that the parties had not separated for a period of two years before the husband filed the petition for desertion. Though the husband has stated in the cause-title of the petition that the ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 20 husband has filed the petition for divorce on the ground of cruelty and desertion, there are no pleadings in regard to desertion. The husband has not pleaded that the wife had left the matrimonial home on 27.10.2007, without any just or reasonable excuse. It is not the case of the husband that the wife had left the matrimonial home on the said date, with a view to break the matrimonial tie. In the absence of any pleadings on the ground of desertion, the wife did not have any opportunity to defend the said ground. The wife has however stated in her evidence that she does not desire to leave the matrimonial home and that she was compelled to leave the same on 27.10.2007. The submission made on behalf of the husband that the wife never desired to join the company of the husband and for the first time she has made an attempt to show her willingness in her evidence, is not worthy of acceptance. It is apparent from a reading of the written statement of the wife that the wife was not inclined to break the matrimonial tie. The cross- examination of the husband shatters the case of the husband that though the husband desired that the wife should reside in the matrimonial home, the wife refused to do so. The husband has clearly admitted that the wife had replied to the legal notice served by the husband on her and though the wife had asked the husband to come to her parental home to take her back to the matrimonial home, he had never gone to the parental home of the wife after 27.10.2007 to bring her back. The husband has further admitted that after ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 21 27.10.2007 he had never served any notice on the wife, asking her to return to the matrimonial home. It is apparent from the evidence of the parties that the wife had not deserted the husband without any just or reasonable excuse. In fact, the wife had gone to her parental home for the delivery of the child and after the child was delivered, the husband never went to her parental home to ensure that the wife and the child returned to the matrimonial home. Neither is the factum of desertion of two years proved by the husband nor has the husband proved the factum of animus deserendi. Merely because the parties are living separately for a period of more than nine years, a decree of divorce cannot be granted, especially when the husband has failed to prove that the wife has treated him with cruelty or has deserted him without any just or reasonable excuse. While recording the aforesaid findings, we are not inclined to accept the case of the husband that the wife had filed the proceedings under the Protection of Women from Domestic Violence Act, against the husband and his family members, with a view to harass them. The wife wanted to reside in the matrimonial home and, therefore, she had filed the said proceedings mainly with the prayer that she should be permitted to reside with her husband and should be given a right of residence. Merely because an ancillary prayer for grant of some compensation is made, it cannot be said that the wife has filed the proceedings against the husband, with a view to harass him. In this case, the wife has never approached the ::: Uploaded on - 26/04/2017 ::: Downloaded on - 27/08/2017 23:41:29 ::: FCA.288.14 22 police authorities with a complaint against the husband for the offence punishable under section 498-A of the Penal Code. We find that the husband has refused to accept the wife though she is ready and willing to reside in the matrimonial home. The husband went to the extent of filing a suit for injunction restraining the wife from entering into the matrimonial home. In the circumstances of the case, there is no reason to interfere with the judgment of the Family Court, in this Appeal.
15. Hence, we dismiss the Family Court Appeal, with no order as to costs.
JUDGE JUDGE
sahare
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