fca76.16.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.76/2016
APPELLANT: Sau. Archna w/o Mahesh Dhore,
Ori. respondent Aged about 39 years, Occ. household work,
On R.A. Presently c/o Shri T.A. Tathod (Patil),
Ex. Tathod Mangal Karyalaya/Tathod Niwas,
Amrut Nagar, Behind Govt. Milk Dairy,
Akola, Tq. and Distt. Akola.
...VERSUS...
RESPONDENT: Mahesh s/o Bhanudas Dhore,
Ori. petitioner Aged about 40 years, Occ. Service,
On R.A. r/o Saptashringi Mandir, old Cidco Houses, Nashik.
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Shri C.A. Joshi, Counsel for the appellant
Shri N.S. Warulkar, Counsel for the respondent
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 20.07.2017 ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.) Heard. ADMIT. The family court appeal is head finally with the consent of the learned Counsel for the parties.
By this family court appeal, the appellant -wife challenges the judgment of the Family Court, Akola dated 26/9/2016, allowing a petition filed by the respondent - husband for a decree of divorce under Section 13 (1) (ia) of the Hindu Marriage Act.
Few facts giving rise to the family court appeal are stated thus : -
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fca76.16.odt 2 The respondent - husband and the appellant -wife were married according to Hindu rites and customs on 18/11/2003. A son, named Aditya is born from the wedlock. It is the case of the husband in the petition filed by him for a decree of divorce on the ground of cruelty that the wife was whimsical, hot-tempered and was always quarrelling with the husband and his family members. It is pleaded that after the marriage, the parties resided in the matrimonial house at Nagpur and then the husband was transferred to Nashik and the parents of the husband were also residing with him at Nashik. It is pleaded that when the wife joined the company of the husband and his parents at Nashik, she did not behave properly with his parents and on a belief that the wife would mend her ways in future the husband continued to stay in her company. It is pleaded that the wife always pestered the husband that the husband should reside separately and away from his parents. It is pleaded that while residing in the matrimonial home the wife used to get up late in the morning, she used to refuse to perform the household duties and she used to abuse and insult the husband and his parents. It is pleaded that the wife behaved very badly with the parents of the husband. It is pleaded that when the parents of the husband tried to talk with their grandson Aditya or fondle him, the wife used to snatch the child from the parents of the husband. It is pleaded that the wife always used to threaten ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 3 the husband that she would leave the matrimonial home and ensure that the marriage between the parties was dissolved. It is pleaded that on 6/2/2005 the wife quarrelled with the husband after alleging that the husband had an affair with another lady. It is pleaded that the mother of the wife also called the husband and asked him whether the wife was ill-treated in the house. It is pleaded that the wife did not permit anybody in the family to meet Aditya or talk to him. It is pleaded that during the night hours also the wife used to quarrel with the husband. It is pleaded that the wife never tried to compromise when there were differences between the parties on some issues and even when the guests visited the matrimonial home the wife did not offer them tea or coffee. It is pleaded that on 6/4/2005 when the mother of the husband had churned the spices and had asked the wife and Aditya to go to the room on the first floor, the wife and Aditya said that they suffered a breathing problem due to the churning of the spices and quarrelled with the mother of the husband for a long time. It is pleaded that the wife assaulted Aditya without any reason. It is stated that when Sarika, the sister of the husband asked the wife not to abuse the mother of the husband in filthy language and also permit Aditya to talk to her for some time, the wife abused Sarika, called her a maid and told her that she should not come to the matrimonial home and touch Aditya. It is pleaded that in June, 2005 the ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 4 wife switched off her mobile and made a hue and cry that her mobile was stolen by her father-in-law. It is pleaded that when in September, 2009 the mother of the husband was seriously ill the wife did not take care of the husband's mother. It is pleaded that on 11/9/2005, the wife fought with the husband and his father on the ground that the parties should reside separately from the joint family. It is pleaded that since the wife had started beating the husband, the husband left the matrimonial home at 10:30 p.m. on 11/9/2005 and started residing in a lodge by taking his belongings to the lodge on 12/9/2005. It is pleaded that when the husband was transferred to Goa, the brother of the wife named Anand had been to Goa and in an intoxicated state he had assaulted the husband on his ears and head. It is pleaded that the wife did not mend her ways even after the parties separated. It is pleaded that the wife used to fight with the neighbours, milkman etc. It is pleaded that in 2007 when the husband was residing at Solapur, his mother Sau. Rama had fallen from the stairs and one of her legs was fractured. It is stated that though a rod was inserted by operating on the leg of Sau. Rama and she was admitted in the hospital for about ten days and was asked to take bed-rest in the house for a month thereafter, the wife did not bother to meet the mother of the husband Sau. Rama and also did not talk to her on the telephone. It is pleaded that when the father of the husband was operated for fistula in ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 5 the year 2005 and was admitted in the hospital for about seven days, the wife did not go to the hospital to meet him. It is pleaded that when the sister of the husband was married at Mahesh Bhawan, Nashik on 12/4/2010 the wife did not attend the marriage though the husband persistently asked the wife to join the company. It is pleaded that when the son of the husband was studying in Choughule English Medium School in Kolhapur without any rhyme or reason the wife had fought with the teachers and thereafter Aditya was removed from the said school and was admitted to another school. It is pleaded that in the said school also the wife had fought with the teachers on 4/2/2011 and hence, Aditya was removed from that school and was required to be admitted in the third school. It is pleaded that in the third school also the wife had fought with the teachers and Aditya was required to be admitted in the fourth school. It is pleaded that due to the behavior of the wife it is impossible for the husband to live with the wife under one roof. It is pleaded that in August 2013 the wife had fought with the milkman and when the husband asked her that she should not fight on such petty matters, the wife fought with the husband and stayed in her parental home for twenty days. It is pleaded that the wife came to the matrimonial home only after the persuation by the husband. It is pleaded that in the circumstances of the case, a decree of divorce should be granted in favour of the husband. ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 :::
fca76.16.odt 6 The wife filed the written statement and denied the claim of the husband. The wife denied all the adverse allegations levelled by the husband against her. It is pleaded that under the pretext of his service the husband used to remain out of the house at Nashik for fifteen days at a stretch. It is pleaded that the husband and his family members had ill-treated her. It is pleaded that the father and the mother of the husband as also his sister Sarika had harassed her. It is pleaded that Sarika, the sister of the husband had forcibly once inserted a toy in the mouth of Aditya till there was bleeding in his mouth. It is pleaded that since the husband's parents and his sisters were ill-treating the wife and also beating her, she was forced to leave the company of the husband on some occasions and join the company of her parents. It is pleaded that some times the parents of the husband did not permit the wife to fondle her son Aditya. It is pleaded that the wife was once kept out of the house for the whole night. It is pleaded that on several occasions the wife was driven out of the house. It is pleaded that the parents of the husband used to abuse and ill-treat the wife in the presence of outsiders. It is pleaded that Sarika and Jayshree, the sisters of the husband also used to give insulting treatment to the wife. It is pleaded that since Jayshree, the sister of the husband had asked the wife not to attend the marriage, the wife had not attended the marriage. It is pleaded that when the mother of the husband ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 7 was hospitalized the wife was not informed about the hospitalization. It is pleaded that the husband had not attended the marriage ceremony of her brother. It is pleaded that once the husband and his family members had abused her and had told her that there was some deformity in her body. It is pleaded that the wife had not ill-treated the husband but the husband had ill-treated her. It is pleaded that though the wife desired to meet Aditya after separation, she was not permitted to do so. The wife sought for the dismissal of the petition filed by the husband on the ground of cruelty.
On the aforesaid pleadings of the parties, the Family Court framed the issues and on an appreciation of the evidence on record, the Family Court granted a decree of divorce in favour of the husband on the ground of cruelty. The judgment of the Family Court is challenged by the wife in this family court appeal.
Shri Joshi, the learned Counsel for the wife submitted that the Family Court was not justified in granting a decree of divorce on the ground of cruelty. It is submitted that several incidents on which the husband had relied, for proving that the wife had treated the husband with cruelty are not the recent incidents and hence, they cannot be considered for holding that the wife had treated the husband with cruelty. It is submitted that the acts of cruelty, even if any, that had taken place ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 8 after the solemnization of the marriage, could be said to have been condoned as the husband continued to reside with the wife for several years thereafter under one roof. The learned Counsel relied on the judgment of the Hon'ble Supreme Court, reported in AIR 2017 SC 1316 in this regard. It is submitted that the alleged acts on the part of the wife would depict only the wear and tear in the matrimony and they cannot be said to be the acts that would constitute cruelty under the provisions of the Hindu Marriage Act. The learned Counsel relied on the judgment, reported in 2014 (3) Mh.L.J. 781 to substantiate his submission that mere trivial irritations, quarrels, normal wear and tear of married life would not be adequate for granting a decree of divorce on the ground of cruelty. It is submitted that the acts alleged by the husband against the wife, even if proved by the husband, cannot constitute cruelty and the husband is therefore not entitled to a decree of divorce.
Shri Warulkar, the learned Counsel for the husband has supported the judgment of the Family Court. It is stated that the Family Court has rightly recorded a finding, on an appreciation of the evidence tendered by the husband that the husband had become tired of the wife and it was impossible for the husband to stay with the wife under one roof. It is stated that the husband had proved that the wife was obstinate, quarrelsome and was behaving arrogantly with the husband, his parents ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 9 and his sisters and was insulting them. It is stated that the Family Court has held that the husband has proved that the wife was compelling the husband to leave his old parents and reside in a nuclear family. It is submitted that the Family Court has arrived at a finding that the wife had not looked after the old parents of the husband and had not gone to see them in the hospital. It is stated that the Family Court has held and rightly so that the counter allegations made by the wife against the husband and his family members were not proved by the wife. It is submitted that since the Family Court has rightly granted a decree of divorce in favour of the husband, the family court appeal is liable to be dismissed.
On hearing the learned Counsel for the parties and on a perusal of the record and proceedings, it appears that the following points arise for determination in this family court appeal :-
(1) Whether the husband has proved that
the wife has treated him with cruelty ?
(2) Whether the husband is entitled to a
decree of divorce on the ground of cruelty ?
(3) What order ?
To prove his case, the husband has examined himself. The husband has reiterated the facts pleaded by him in the petition, in his evidence on affidavit. The husband was cross-examined on behalf of the wife. The husband denied in his cross-examination that his parents used ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 10 to fight with the wife on petty matters. The husband denied the suggestion that he had locked his flat on 1/4/2014 when the wife had come to Kolhapur. The husband denied that on 1/4/2014 when the wife called him on the telephone he had abused her and had threatened to kill her. The husband denied the suggestion that he had left Kolhapur after locking the house and therefore the wife was forced to sit outside the flat for the whole night. The husband denied that he and his father had filed a false report against the wife in the police station and had levelled false allegations against her. The husband denied that the wife had on several occasions called the husband so that she could reside with him in the matrimonial home. The husband denied that he had filed false case against the wife for a decree of divorce.
Apart from the husband, the husband has examined his uncle Shri Ganesh Dhore. Ganesh stated in his evidence that the wife used to behave very badly with the husband and she did not like the relatives of the husband to come to the matrimonial home. Ganesh stated in his evidence that the wife did not permit her in-laws to come to the matrimonial home. He stated in his evidence that the husband had told him on telephone on 30/11/2013 that the wife should mend her ways and start residing with the husband under one roof. Ganesh stated that though he asked the wife to do so, the wife had told Ganesh that she does ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 11 not wish to live with the husband and wishes to secure employment and money. Ganesh stated that when he had been to the house of the aunt of the wife on 29/12/2013 the wife drove Ganesh and the persons accompanying him out of the house. Ganesh was cross-examined on behalf of the wife. He denied every suggestion given by the wife in the cross-examination.
The husband also examined Shri Yogesh Bhatkar. Yogesh reiterated the allegations that were made by the husband against the conduct and behavior of the wife. Unfortunately, Yogesh Bhatkar was not cross-examined on behalf of the wife and his evidence remained unchallenged.
The wife filed her evidence on affidavit. The wife reiterated the allegations made by her against the husband and his family members in the evidence on affidavit. In her evidence on affidavit, the wife stated that she was ill-treated by the husband and his family members and her life was made miserable by the parents and the sisters of the husband. The wife was cross-examined on behalf of the husband. The wife admitted in her cross-examination that her husband had treated her well at Nagpur and her relations with him during that period were cordial and therefore, she had no complaints against him. The wife stated that she was not aware whether her father-in-law had complained to her father regarding ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 12 her conduct and that she was not behaving properly with the family members. The wife denied the suggestion that due to the conduct of the wife, her husband was thrown out of the matrimonial home, along with her. The wife however admitted that in 2005, the father of the husband had thrown them out of his house. The wife admitted that even in Goa she did not have any occasion to lodge a report against the husband and his in-laws. The wife denied that the husband had telephoned to her parents from Goa and had complained about her behaviour, as a result of which her brother had come to Goa. The wife however admitted that there were disputes between the husband and her brother because of her behaviour while they were residing at Goa. The wife stated that she was not aware that the husband had lodged a report with Panaji Police against the wife and her brother. The wife admitted that she had called a meeting in Pune in December, 2013 for resolving the disputes. The wife denied that after a notice was received by her, the parties have filed cases against each other. The wife admitted that her mother-in-law had suffered an accident in 2007 due to which she was admitted in the hospital at Nashik. The wife stated that she was however not aware whether her father-in- law was also admitted in the hospital at Nashik. She denied the suggestion that she had not gone to the hospital to meet her in-laws. The wife denied that she had assaulted the teachers in Ford International ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 13 School. The wife however admitted that five teachers from the said schools had written to the husband and had asked him to give her psychiatric treatment. The wife stated that the majority of the teachers in the schools were supporting her. The wife denied that her son was driven out of the schools because of her bad behaviour. The wife admitted that the husband had never objected to the wife's continuing her education or taking up the job. The wife further admitted that the husband had taken care of her needs when they resided together. The wife stated that she was not aware whether the husband and his father had filed reports against her. The wife stated that she had not consented to a decree of divorce by consent and that her signature on the divorce petition filed before the Court at Kolhapur was secured forcibly. The wife however admitted that she had signed on the petition for divorce by mutual consent in the Court itself. The wife admitted that she had not attended the marriage of her sister-in-law. The wife however denied the suggestion that she had not attended any of the functions after the marriage of her sister-in-law.
On an appreciation of the evidence tendered by the parties on record, the Family Court held that the husband had proved on the basis of his evidence and the evidence of his uncle and Yogesh Bhatkar, the friend of the husband whose evidence has gone unchallenged that the ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 14 wife had treated the husband with cruelty. The Family Court held that on an appreciation of the evidence tendered by the husband and his witnesses, it could be gathered that the wife always wanted to reside separately and away from the joint family and her in-laws. It is found from the evidence tendered by the husband, his relative and his friend that the wife was behaving arrogantly with the husband and quarrelling with her in-laws without any rhyme or reason. It is observed by the Family Court on the basis of the evidence on record that when the parties were at Goa, the brother of the wife had assaulted the husband under the influence of liquor, as a result of which the husband had suffered injuries and had to lodge a report in the police station against the brother of the wife. It was apparent from the evidence of the husband that the quarrel between the husband and the brother of the wife took place because of the wife. It is found that the husband had been successful in proving that the wife had not attended the marriage of the real sister of the husband by name Jayshree that was performed on 12/4/2010. The Family Court held that the case of the wife in her written statement that she did not attend the marriage as Jayshree had told her not to attend the same at the time of her engagement was not correct as the wife had stated in her evidence on affidavit that she had not attended the marriage of Jayshree because the husband had not taken her to the said marriage. The ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 15 Family Court found that the wife was changing her stand from time to time and it was therefore not possible to believe the reason put forth by the wife, for not attending the marriage of the sister of the husband. The Family Court has held and rightly so that it was not possible to believe the wife as the wife had taken two different stands for not attending the marriage of Jayshree, one being that Jayshree had not permitted the wife to attend the marriage and the second being that the husband had not taken her to the marriage. The Family Court then found that the husband was successful in proving that the wife was not only quarrelling with the husband and his family members but was also quarrelling with the teachers in the schools. The wife had admitted in her cross-examination that five teachers in the school where Aditya was studying had given in writing to the husband that the wife should be treated by a psychiatrist. The said admission of the wife would clearly show that her conduct in the schools was such that five teachers in the school had to write to the husband that the wife should be treated by a psychiatrist, as she was behaving very badly with the school teachers. It is found from Exhibit - 43, which is the letter written by the teachers to the husband that the wife had abused the teacher, Monali, called her bitch, pulled her hair and kicked her in the school premises. From Exhibit - 43 it could be seen that as per the teachers that had complained to the husband against ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 16 the wife, the wife had behaved in an unruly manner only because the wife was not happy with the marks awarded to her son for certain answers. It was further written in the letter at Exhibit - 43 by the teachers that the wife had alleged that the teachers used to do time-pass by calling the fathers of the children and not their mothers. Though the wife had denied that she was fighting with the teachers, the admission of the wife in her cross-examination that five teachers from the school had complained to the husband in writing about her behaviour and asked that she should be treated by a psychiatrist, clearly shows that the case of the husband that the wife had the habit of fighting with the teachers and abusing them is proved. It is necessary to note that though Yogesh Bhatkar had clearly stated about the quarrelsome nature of the wife and about the ill-treatment meted out by her to her husband and his family members, Yogesh has not been cross-examined on behalf of the wife. Since the evidence of Yogesh remained unchallenged the Family Court has rightly relied on the unchallenged evidence of Yogesh in his examination-in-chief. From the evidence of Yogesh and the husband, the Family Court came to a conclusion that the husband had been successful in proving that the wife did not wish to reside with her in-laws and always pestered the husband that he should stay away from the joint family. The evidence of Ganesh Dhore has also supported the case of the husband. The evidence ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 17 on record clearly establishes that though a meeting had taken place in December, 2013 to resolve the disputes, the wife refused to return to the matrimonial home. From the admissions of the wife in her cross- examination, it appears that the allegations made by the wife against the husband and his family members are untrue as she has admitted in her cross-examination that the husband had taken care of her needs, when they resided together and there was no problem when the parties cohabited together in the matrimonial home. It was also noted by the Family Court that the wife had signed on the petition for a decree of divorce by consent but had later withdrawn herself from the said proceedings by falsely stating that her signature on the petition for divorce by mutual consent was secured forcibly. Since the wife had admitted in her cross-examination that she had signed the petition for a decree of divorce by mutual consent in the Court itself, the case of the wife that she was forcibly made to sign on the petition for a divorce by mutual consent is false and baseless. Since the husband has proved the allegations levelled by him against the wife, the Family Court has rightly held that the husband was entitled to a decree of divorce on the ground of cruelty. We do not find any merit in the submission made on behalf of the wife that the allegations levelled by the husband against the wife, even if they are said to be proved would only depict the normal wear and tear, in ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 18 the matrimony. The allegations levelled by the husband against the wife in the petition that stand proved, cannot be said to be the acts that would only reflect the normal wear and tear in the matrimony. The Family Court has rightly held that if a person faces harassment of any kind, may be a physical or mental, there comes a point in such person's life when he decides that enough is enough. It cannot be said in the circumstances of the case that the husband cannot be permitted to seek a divorce on the basis of the incidents that had taken place in the earlier part of the matrimony. In our view, all the incidents that had taken place from the date of the marriage of the parties and that show that the wife had treated the husband with cruelty, could have been looked into while considering whether the husband was entitled to a decree of divorce on the ground of cruelty. It cannot be said that merely because the husband continued to stay with the wife for quite some time despite her harassment and ill-treatment, the acts of cruelty on the part of the wife for the earlier period of the matrimony have been condoned. As rightly held by the Family Court, there can be a point in a person's life who faces harassment, when the person may decide that it is not possible for that person to stay with the other person, who inflicts cruelty, under one roof. The judgment, reported in AIR 2017 SC 1316 cannot be made applicable to the case in hand. The judgment, reported in 2014 (3) Mh.L.J. 781 ::: Uploaded on - 25/07/2017 ::: Downloaded on - 08/08/2017 00:40:45 ::: fca76.16.odt 19 would also not apply to the facts of this case as in this case, the allegations against the wife do not relate to mere trivial irritations, quarrels and normal wear and tear of married life. The allegations proved by the husband against the wife in this case are grave and serious and the proved allegations, show that the husband was treated by the wife with cruelty.
Since the judgment of the Family Court is just and proper, we dismiss the Family Court Appeal with no order as to costs.
JUDGE JUDGE
Wadkar
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