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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 85 OF 2015
APPELLANT :- Manoj S/o Shreeram Ganveer, Aged about
Org.Petitioner 43 years, Occ-Service, R/o Room No.1, A-1
Wing, Twinkle Apartment, Gaodevi Nagar,
Katemaniwali, Kalyan (East), District Thane.
...VERSUS...
RESPONDENT :- Smt. Urmila W/o Manoj Ganveer, Aged
Org.Respondent about 43 years, Occ-Service, R/o C/o
P.M.Gedam, Savitribai Fuley Nagar,
Tathagat Gautam Buddha Marg, Bhagwan
Nagar, Nagpur-27.
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Mr. Nitin Jachak, counsel for the appellant.
Mr.S.K.Malode, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
V.M.DESHPANDE, JJ.
DATED : 23.03.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this family court appeal, the appellant-husband challenges the judgment of the Family Court, Nagpur dismissing the petition filed by the husband for a decree of divorce on the ground of cruelty and desertion.
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2. Few facts giving rise to the family court appeal are stated thus :-
The appellant-husband was married with the respondent- wife at Nagpur on 26/10/1997 as per the rites and customs prevailing in their community. After the marriage, the parties started residing together in the matrimonial house at Kalyan and a son and a daughter were born from the wedlock. According to the husband, the wife behaved well for about a year from the marriage but thereafter she started behaving illogically and adamantly. According to the husband, the wife started harassing and torturing the husband physically and mentally. Since the wife had left the matrimonial home on 30/08/2003 after raising a quarrel on a petty issue, the husband filed proceedings for restitution of conjugal rights but the said proceedings were dismissed. Since the respondent-wife was not ready to cohabit with the husband, the husband filed the proceedings for a decree of divorce on the ground of cruelty and desertion. It was pleaded by the husband in the said petition that the wife was not desirous of cohabiting with the husband and demanded a divorce on many occasions. It is pleaded that the wife had made various false complaints against him before different authorities and had defamed the husband. It is pleaded that due to the whimsical behaviour of the wife, the wife had made the life of the husband miserable and that he was forced to lodge police report against the wife. It is pleaded that the wife had also lodged a false police report ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 3/12 against the husband under section 498-A of the Penal Code. It is stated that after levelling serious allegations against the husband and creating a scene over a petty issue on 30/08/2003, the wife left the husband along with the children, never to return to the matrimonial home. It is pleaded that though the husband and his family members tried to reconcile the matter, the wife was not ready to mend her ways. It is pleaded that earlier also, the wife had left the house in the year 1999 and the matter was settled with the help of elders. It is pleaded that the wife had withdrawn from the society of the husband without any just and reasonable excuse and hence, the husband was entitled to a decree of divorce on the ground of cruelty and desertion.
3. The wife filed the written statement and denied the claim of the husband. All the adverse allegations that were levelled against the wife by the husband were denied by her. The wife pleaded in the specific pleadings that the husband was in the habit of establishing extra marital relationship with different ladies, who became friendly with him and he also had an extra marital relationship with the maidservant in the house. The wife pleaded that whenever she asked the husband about his extra marital relationships, the husband used to harass and ill-treat her. The wife stated that the wife was fed up with the objectionable behaviour of the husband. The wife further pleaded that she had reliably learnt that the husband had married one of his ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 4/12 friends and some issues were born from the said relationship. It is pleaded that the friend of the husband is residing with the husband under one roof as his wife. The wife sought for the dismissal of the petition filed by the husband.
4. On the aforesaid pleadings of the parties, the Family Court framed the issues. The parties examined themselves and closed the evidence on their side. The parties did not examine any other witness in support of their respective cases. On an appreciation of the material on record, the Family Court dismissed the petition filed by the husband for a decree of divorce after holding that the husband had failed to prove that the wife had treated him with cruelty and that she had deserted him without any just or reasonable excuse. The judgment of the Family Court is challenged by the husband in this family court appeal.
5. Shri Jachak, the learned counsel for the husband, submitted that the Family Court committed a serious error in holding that the wife had not treated the husband with cruelty. It is stated that the wife had made reckless allegations against the husband in the written statement and failed to prove the same. It is stated that the wife had clearly stated in paragraph No.11 of the written statement that the husband had a habit of establishing extra marital relationship with ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 5/12 several women that came his way and was also having an extra marital relationship with the maid in the house. It is stated that the wife had also stated in the written statement that the husband had married his friend and some issues were born to the husband from the said relationship. It is stated that the reckless allegations made against the husband are bald and no details of the relationship of the husband with any of the woman is mentioned in the written statement. It is stated that if the husband had relationship with several women and the wife knew about the said relationships including his marriage with one of his friends, the wife should have named at least a few of the women with whom he had a relationship or the woman with whom he had allegedly married and had issues. It is stated that it is well settled that levelling of false and reckless allegations in regard to the husband's character and failing to prove the same would tantamount to cruelty. It is submitted that the Family Court failed to consider this aspect of the matter in the right perspective while dismissing the petition filed by the husband. It is stated that since the wife had made similar allegations in the written statement filed in the proceedings filed by the husband for restitution of conjugal rights, the Family Court could not have held that the said allegations cannot be considered in the present petition. It is submitted that two letters are produced by the wife at exhibits-42 and 43 that are addressed by the wife to her father alleging that the husband was a womanizer and was ill-treating her. It is stated that ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 6/12 these documents were not tendered by the wife in the proceedings filed by the husband for restitution of conjugal rights and on the basis of the new material that was placed before the Family Court in the present proceedings, the Family Court ought to have granted a decree of divorce in favour of the husband after holding that the conduct on the part of the wife of levelling reckless allegations in respect of the character of the husband and failing to prove the same would tantamount to cruelty. The learned counsel relied on the judgments, reported in 2012 (1) Mh.L.J 43 (Ramesh Laxman Sonawane v. Meenaxi Ramesh Sonawane), 2012 (5) Mh.L.J. 298 (Bhavana N. Shah v. Nitin Chimanlal Shah) and 2015 (6) Mh.L.J. (Lilesh w/o Vinod Agrawal v. Vinod Ramrichpal Agrawal) to substantiate his submissions.
6. Shri Malode, the learned counsel for the wife, supported the judgment of the Family Court. It is submitted that a finding of fact is recorded by the Family Court in the proceedings filed by the husband for a decree of restitution of conjugal rights that the wife had sufficient cause to leave the company of the husband. It is submitted that in the present proceedings also, the Family Court has rightly rejected the prayer of the husband for a decree of divorce as similar allegations were made by the wife against the husband in the earlier proceedings and in those proceedings, a decree of restitution of conjugal rights is not passed in favour of the husband. It is submitted that in the ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 7/12 circumstances of the case, the Family Court has rightly dismissed the petition filed by the husband.
7. Before framing the points for determination in this case, we would like to make a note of what transpired in the court on two earlier dates of hearing. This family court appeal was called for hearing on 21/03/2017 and 22/03/2017. The parties had agreed that the matrimonial ties could be severed on certain conditions. In the morning session on 22/03/2017, both the parties had agreed that the marriage solemnised between the parties could be dissolved if the husband pays a sum of Rs.10,000/- per month towards maintenance for his daughter, pays the education fees for his son, who is taking education in the engineering course and pays 50% of the marriage expenses of the daughter at the time of her marriage, as the wife and the husband are both working as stenographers in different departments of the government. We would like to mention that the compromise pursis was prepared with the joint efforts of the counsel for the husband and the wife but in the afternoon session, when the compromise was about to be recorded, the wife, who was present in the court on both the dates of hearing, backed out and stated that she is ready for a decree of divorce only if the husband pays a sum of Rs.15,00,000/- to her. Since the wife and the husband are both working as stenographers and it is likely that there is not much of a difference in the pay scale of both the parties, the ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 8/12 husband was not in a position to shell out the said amount and the compromise did not materialise. We have, however, placed the copy of the compromise pursis that is prepared by the counsel for both the parties, on record.
8. Be that as it may, on a perusal of the record and proceedings and 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 proves that the wife had deserted the husband without just or reasonable excuse?
(II) Whether the wife had treated the husband with cruelty? (III) Whether the husband is entitled to a decree of divorce?
(IV) What order?
9. To consider the aforesaid points for determination, it would be necessary to consider the pleadings of the parties, which we have narrated in the earlier part of the judgment in detail. It would therefore not be necessary to reiterate the pleadings of the parties. The husband has clearly stated that the wife was not only harassing the husband mentally and physically by the acts, as pleaded in the petition but has further stated that the wife had levelled several reckless ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 9/12 allegations against the husband and that has caused great agony to the husband. It would be conspicuous to reiterate the pleadings of the wife in respect of the illicit relationship of the husband with several ladies. The wife had stated in paragraph 11 of the written statement that the husband was in the habit of establishing extra marital relationship with different ladies with whom he became friendly very easily. The wife has further pleaded that the husband had an extra marital relationship with the maidservant in the house and when the wife was not in the house, she was always worried that the husband would be involved in some illicit act. The wife has further stated in the written statement that the husband had married one of his friends and some issues are born from the said relationship. The husband has stated in his evidence that the aforesaid allegations of the wife, have caused great mental agony to the husband and has lowered his image in the society. The wife reiterated the statements in her pleadings, in her evidence on affidavit. It is conspicuous to note that though the wife had stated that the husband had established extra marital relationship with several women, not a single woman is named by the wife in the written statement. If the husband really had established extra marital relationship with several women, the wife would have surely been in a position to name at least a few of them. The wife has gone to the extent of saying that when she was not in the house, the husband established an extra marital relationship with the maidservant. The maidservant is however, not ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 10/12 named. It is also not stated as to how the wife became aware that the husband was having extra marital relationship with so many women. Except the aforesaid bald statements, there is nothing on record to show as to how the wife had secured the knowledge about the extra marital relationship of the husband with the other women. If a wife is aware about the extra marital relationships of her husband and if she is sure about the existence of the same, the wife would surely name the women with whom her husband has an extra marital relationship. In this case, the wife does not only allege extra marital relationship of her husband with one woman but alleges extra marital relationship of her husband with several women, without naming a single woman. The wife has also gone to the extent of saying that the husband had an extra marital relationship with the maidservant and has also married one of his friends (who is not named) and has some issues from the said relationship. If the wife was aware that her husband had married another woman during the subsistence of her marriage, she would have surely named the woman with whom the husband had married and would have also informed the court as to how she had secured the knowledge about the relationship, or whether she had personally witnessed any incident. We have held that earlier, and we reiterate that levelling of reckless allegations pertaining to the character of a spouse and failing to prove the same would tantamount to cruelty. In this case, we find that the wife had levelled reckless allegations against the ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 11/12 husband in the letters, at exhibits-42 and 43 and has failed to prove the allegations. The Family Court was not justified in refusing to grant a decree of divorce in favour of the husband on the ground of cruelty by holding that similar type of allegations were made by the wife against the husband in the proceedings filed by him for restitution of conjugal rights. Even if that is so, the Family Court had not decided the question whether the husband had illicit relationship with other women in the petition filed by the husband for restitution of conjugal rights. Also, some new material is placed by the wife on record in which more reckless allegations are levelled by her against her husband. The Family Court, in the circumstances of the case, ought to have granted a decree of divorce in favour of the husband on the ground of cruelty. It is held by this court time and again that unsubstantiated allegations by a wife that the husband is having an extra marital relationship, constitute mental cruelty. It would be worthwhile to refer to the judgments reported in 2012 (5) Mh.L.J. 298, 2015 (6) Mh.L.J. 536 and 2012 (1) Mh.L.j. 43 in this regard. The Family Court failed to consider the law laid down by the Hon'ble Supreme Court and this court in several decisions before dismissing the petition filed by the husband. The Family Court has not appreciated the evidence in the right perspective and has not applied the correct position of law to the facts of the case while deciding the petition filed by the husband. Though we find that the husband has proved that the wife has treated him with cruelty, we ::: Uploaded on - 29/03/2017 ::: Downloaded on - 30/03/2017 00:23:04 ::: 2303FCA85.15-Judgment 12/12 are not inclined to accept the case of the husband that the wife has deserted him without any just or reasonable excuse. On this issue a finding of fact is recorded against the husband in the proceedings filed by him for a decree of restitution of conjugal rights. Hence, though the husband has failed to prove that the wife has deserted him without any just or reasonable excuse, the husband would be entitled to a decree of divorce on the ground of cruelty.
10. Hence, for the reasons aforesaid, the family court appeal is allowed. The judgment of the Family Court is set aside. The petition filed by the husband is allowed and the marriage solemnized between the parties on 26/10/1997 is dissolved by a decree of divorce under section 13(1)(i-a) of the Hindu Marriage Act. In the circumstances of the case, there would be no order as to costs.
JUDGE JUDGE
KHUNTE
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