Rajaram Govind Shelgikar vs Alka Rajaram Shelgikar
2002 Latest Caselaw 274 Bom

JUDGMENT

S.J. Vazifdar, J.

1. The appellant has challenged the order of the Family Court, Pune, dismissing his petition against his wife, the respondent, for divorce, on the grounds of cruelty and desertion under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955.

2. The appellant and the respondent were married on 20th June, 1967. They have three children two daughters Aparna and Archana and a son Amit, born on 17-2-1969, 27-1-1971 and 16-7-1974 respectively. For about twelve years, apart from the normal wear and tear of a marriage, the marriage was satisfactory. There is some dispute about this but the same is not relevant. The respondent left the appellant on 23rd September, 1980. The facts leading to this event as well as an incident subsequent thereto require to be considered in the present appeal.

3. The appellant filed the petition on 21st November, 1983. The trial Court accepted the case of the respondent and her testimony, as well as that of her witnesses, disbelieved the appellant and held that it was the appellant in fact, who was guilty of cruelty to the respondent. We are in agreement with the findings of the trial Court.

4. In the petition and in his oral evidence the appellant's case was that immediately after the marriage the parties co-habited at Solapur in Maharashtra and in 1968 shifted to Pune. Since the beginning the marital life was not smooth and harmonious. He, however, stated that quarrels were on petty counts. According to him, the conduct of the respondent was not in keeping with the role expected of a Hindu wife in asmuch as she did not serve him meals in time, on occasions she did not serve him food when he came home late at night and was arrogant and not devoted to him. The appellant also deposed that he found the respondent's conduct suspicious as she went to her parents home frequently without informing him, which necessitated him having to bring her back. On 23rd September, 1980 i.e. on Anant-Chaturdhasi day at 8.00 p.m. the respondent along with her brothers and the appellant's brothers visited the house, demand that he give a divorce and threatened to kill him if he did not. On refusing, they started beating him. A curious statement is made by the appellant. "I rescued and came out of home under the pretext of contact and consultation of my Advocate". The following day he returned home and found the house locked and the keys with the neighbour. He also found that the respondent had left the house with the children. The appellant's case is that though he looked after the respondent and their children, the respondent was instigated by the members of his family as well as hers to leave the matrimonial home.

The appellant has also referred to an incident which took place after 23rd September, 1980 which according to him constituted cruelty against him. The respondent, according to him, signed a sale deed in respect of certain agricultural lands in which he had a share.

This in substance is his case in support of the petition.

5. The respondent in her written statement and the oral evidence denied the above allegations made by the appellant. At the outset it must be noted that the respondent and the children were and continue to be supported not only by her family but by the members of the appellant's family as well.

The respondent's case is that in or about 1975-76 the appellant left his job and started private practice as a Consultant in Accounts and Tax. It was thereafter that his behaviour and approach towards the respondent changed drastically. He apparently started doing well and did not consider the respondent good enough for him. From 1977-78 he started beating her, at times brutally. He started casting aspersions on her character accusing her of having an affair with various persons including his brother. On one occasion she went back to her parents place but returned to the matrimonial home on being persuaded to do so. A few days thereafter the appellant once again started harassing the respondent. He did not permit the respondent to use the phone and locked her inside the house.

6. In 1979 the appellant and the respondent decided to perform a Pooja at Kolhapur. The respondent went to Kolhapur. The respondent went to Kolhapur earlier and the appellant was to join her later. On being informed that the appellant never intended to go to Kolhapur, she returned to Pune. Finding the flat locked she went to Thane to the appellant's elder brother's house. Subsequently the appellant visited his elder brother's house and brutally beat the respondent. The intervention of his sister in law did not help. The children were greatly disturbed and the guests upset. Two days thereafter the parties returned to Pune. Unfortunately the appellant continued his cruel behaviour to such an extent that the employees of the appellant informed the respondent's brother and the appellant's mother of the same.

There was a family get together at the appellant's brother's house to celebrate the Gauri Ganpathi festival. The appellant had an altercation with his mother for supporting the respondent and assaulted the respondent. He thereafter left without performing the pooja.

On yet another occasion the parties performed a religious ceremony at the appellant's sister's home. While returning, the appellant accused the respondent of having an affair with his sister's husband one Shri Khasnis. When they reached their house, the appellant quarrelled with the respondent regarding this in the presence of the entire family including the children and the respondents brothers. He was admonished by the members of his own family for this. He dealt blows with a stick to his sister-in-law who was rescued by her husband. The appellant's mother also advised the respondent to leave the matrimonial home with the children. The respondent did so, leaving behind all her belongings.

The appellant's mother asked her parents to accommodate her for one or two months till the academic year of the children was over and thereafter agreed to keep the respondent at her home if the appellant did not mend his ways. The appellant's family has ever since taken care of and supported the respondent and the children including their education. The children have attained majority and are well educated. The marriage and the marriage expenses of the daughters were arranged by the appellant's family and the respondent's father. Since 1980 the appellant has not visited or inquired about the respondent or his daughter. The appellants evidence in this regard is worth noting. He admits:--

"It is true that since 1980 till this date I never inquired about my children. I agree that amount of Rs. 200/- would not be sufficient to meet daily needs of my wife. I have not made any arrangements for residence of my wife. (Witness Volunteers that it is not his responsibility as the wife has deserted him.) Similarly, I have not made residential arrangements for my children. (Witness volunteers that I had filed application for custody of children."

7. The appellant's brother's wife one Anuradha was examined on behalf of the respondent. She confirmed that the appellant had beaten the respondent on occasions as well as locked her in the kitchen which had upset the children. She also confirmed that the appellant had cast aspersions on the respondent's character and accused her of having an affair with the appellant's brother. In cross-examination the appellant has been unable to shake her testimony.

8. The respondent also examined her daughter Aparna who at the time of giving evidence was 27 years old and married. She deposed that she saw the appellant beat the respondent. She also deposed that the appellant took the respondent to the kitchen and beat her a lot at which the children cried and shouted and people gathered around them. She has, however, deposed that the appellant did not treat the children with cruelty but that whenever he beat the respondent she got scared and that the atmosphere in the house was one of fear and tension. She further stated that the appellant was good with her. She, however, stated that during her stay at Solapur the appellant never made any inquiries about her. Her evidence also remains unshaken. There is nothing in the cross-examination by which we are inclined to believe that her testimony was false or at the instance of her mother.

9. The overwhelming evidence establishes that the cruelty on the part of the respondent was far from established. In fact, the respondent established cruelty on the part of the appellant towards her. In this regard we are entirely in agreement with the findings of the family Court. The respondent has suffered gravely at the hands of the appellant. Even the appellant's family members including his mother and brother-in-law supported the respondent. The evidence of the witnesses corroborates the respondent's case of cruelty by the appellant towards her. We have not found anything in the evidence of any of the witnesses that suggests to the contrary. Had the respondent filed a petition for divorce on the ground of cruelty it would in all probability have succeeded on the facts. In the circumstances the family Court had no option but to dismiss the appellant's petition for divorce on the ground of cruelty.

10. Faced with this overwhelming evidence against the appellant. Mrs. Jakhade, the learned Counsel appearing on behalf of the appellant, endeavoured to support the case of cruelty on the grounds that:--

(I) The respondent led oral evidence on certain facts not pleaded in the written statement:

(II) The respondent did not lead any evidence in support of certain allegations in her written statement; and

(III) Certain allegations made by the respondent in the written statement and in her examination-in-chief are false.

(IV) The respondent signed a document affecting the appellant's interest in property at the instance of his family members.

11. Re. (I) The respondent led oral evidence on certain facts not pleaded in the written statement. In support of this submission, Mrs. Jakhade invited our attention to the oral evidence at page 80 of the appeal compilation. The respondent in her examination-in-chief deposed that the appellant had beaten her and referred to the incident of 1979 when the appellant beat her and her mother-in-law had admonished him for the same. She also deposed that the appellant had accused her of having an affair with others. Mrs. Jakhade also invited our attention to paragraphs 2, 3 and 4 of the respondent's evidence where she narrated the incidents we have referred to above relating to the pooja at Kolhapur for which the appellant did not join her and the events thereafter. We are satisfied that this case was clearly established in evidence. Mrs. Jakhade could not really dispute this. But, Mrs. Jakhade submits that the same was not clearly pleaded in the written statement. We are unable to agree with Mrs. Jakhade.

12. In paragraphs 9, 10 and 11 of the written statement the respondent has averred that the appellant harboured unfounded suspicions about her having an illicit affair with others and his continuing to do so despite the attempts of various people to dispel the same. She has also pleaded that the appellant beat her severely on occasions in the presence of the children and other members of family. She averred that the same has caused her mental as well as physical cruelty. These averments have been clearly deposed to and established in the oral evidence of the other witnesses as well. During the oral evidence the same were described in greater detail. That is not the same as saying that there were no pleadings to support the evidence.

13. Moreover, there is no presumption that if a party leads evidence of a fact which is not pleaded the same is irresponsible, wild or baseless. If a party leads evidence on aspects which are not pleaded, it may in certain circumstances reflect on the evidentiary value thereof. It may also entitle the other party to object to the evidence being led on the ground that it is not pleaded. But there is no rule that irrespective of the facts and circumstances, it must be held that the evidence led of a fact not pleaded must be held to be irresponsible, wild and baseless.

14. In the present case, it is important to note that the appellant did not even object to the evidence being led. If the objection had been raised, the respondent may have considered making an application for amendment which she did not as no objection was raised. If from the facts and circumstances of the case and on an appreciation of the evidence, the Court comes to the conclusion that the oral evidence is wild, baseless or reckless that would be a different matter and will entitle the Court to treat the same as cruelty. In the present case we do not find any reckless, baseless or wild allegations in the respondent's evidence. On the contrary it has been established that it was the husband who made such allegations. Even if the respondent has led evidence of certain facts which had not been pleaded, looking to all the facts and circumstances of the case we reject the contention that the same were wild, reckless or baseless.

In the circumstances we are unable to accept the submission under consideration and reject the same.

15. Re. (II) The respondent did not lead any evidence in support of certain allegations in her written statement.

In support of this submission, Mrs. Jakhade invited our attention to the pleadings in paragraphs 9 and 10 of the written statement. In paragraph 9 the respondent alleged that their daughter suffered serious bleeding at the hands of the appellant with the result that the ear drum was performated. This has resulted in permanent damage such as loss of hearing and recurring infection. In paragraph 10 the respondent has alleged that the appellant accused her of having an affair with one Shri Jain when he stayed with the appellant and the respondent.

16. Mrs. Jakhade relied upon the judgment of a learned Single Judge of this Court (A.V. Savant, J.) in the case of Nirmala Manohar Jagesha v. Manohar Shivram Jagesha, 1991 Mh.L.J. 267 in support of the above submission. In that case the learned Judge held that the husband was entitled to a decree for divorce on the ground that the wife had made wild, reckless and baseless allegations in the written statement. The learned Judge came to a finding that the allegations were irresponsible, wild and baseless. The wife had made allegations of impotency and lack of manliness in the husband. She alleged that the husband was impotent and was unable to consummate the marriage and went on to state in her written statement. "The entire averments set out in para 2 of the petition stand denied. It is denied that the respondent was sexually cold and not responding. The respondent states that on the contrary, the respondent feels and strongly apprehends that the petitioner is impotent and is unable to consummate the marriage. The averments set out in para 2 of the petition are rather otherwise and all such allegations are applicable to the petitioner not the respondent. The want of manliness in the petitioner necessarily infers to be the impotency of the petitioner." Only the husband led oral evidence. The wife did not examine herself despite the fact that she had made serious allegations against the husband. Nor was anything suggested to the husband in his cross-examination. In these circumstances the learned Judge justifiably came to the conclusion that the allegations if made recklessly, and without any basis were wild, reckless and baseless. It is settled law that such allegations amount to cruelty in matrimonial law.

17. We do not read the judgment as having held that merely because a party does not lead evidence in respect of certain allegations in the pleadings, it follows ipso facto that they are irresponsible, wild or baseless. In the case before us the respondent examined herself. She led the evidence of her daughter as well as the appellant's sister-in-law. The husband did not lead the evidence of any witness. He only examined himself. Merely because a party does not lead evidence on a particular aspect raised in the pleadings, it does not follow that the pleading on that aspect or fact was irresponsible or wild or baseless. There may be several reasons for a party not to lead evidence in respect of a particular aspect or aspects in the pleadings. The party may rest content by leading evidence on various other aspects which on legal advice or otherwise the party considers to be sufficient in support of the relief that he or she claims or in defence to a relief claimed by the other side. In certain circumstances a party may find it difficult to prove a fact which is pleaded. We do not read the judgment as having laid down an absolute rule that merely because evidence on every aspect and every statement in the pleadings has not been led it follows that the same was made irresponsibly, wildly and is baseless. It would depend upon the facts of each case and the Court would have to come to the conclusion that the allegations were made irresponsibly. This conclusion cannot be reached in the manner or for the reason suggested by Mrs. Jakhade. In the present case the respondent in fact entered the witness box and deposed to all the main factual aspects pleaded by her. The evidence led by her is sufficient, when accepted, to reject the appellant's petition. We, therefore, reject the above submission.

18. Re : III. Certain allegations made by the respondent in the written statement and in her examination-in-chief are false. We have already upheld the main allegations by the respondent against the appellant. Mrs. Jakhade, however, invited our attention to the allegations in paragraph 9 of the written statement where she stated that their daughter Aparna suffered bleeding at the hands of the petitioner leading to a perforation of the eardrum. She submitted that in fact, Aparna stated that the appellant never treated her with cruelty and she also stated that the appellant was good with her. Merely because Aparna did not refer to that incident it does not follow that the averment is false. Though the allegation may be true, it is not necessary that the daughter would have referred to it in her evidence. There is nothing extraordinary or unusual in her omitting to do so. In the cross-examination the appellant did not question her on this aspect either. Even if the appellant had beaten her as alleged by the respondent, it is possible for his daughter would still be of the opinion that the appellant did not treat her with cruelty. It is possible that child would not consider an occasional beating by the appellant to be cruelty in general. We are not persuaded to hold that the averment is false.

19. Re. IV. The respondent signed a document affecting the appellant's interest in property at the instance of his family members. Mrs. Jakhade lastly submitted that the respondent joined hands with the appellant's brothers in selling his interest in certain lands. This according to her caused the appellant mental cruelty. The learned Family Court rejected this contention for the reason that the appellant had left the respondent and as observed above she was being looked after by the members of the appellant's family. We are in agreement with the learned Judge that it was but natural on her part to follow the advise given by her brother-in-law in signing the sale deed along with them after the couple was separated. We also reject the contention that this has caused any mental cruelty to the appellant. If the sale deed was bad in law, the appellant was at liberty to take steps in respect thereof which, on the other hand as a matter of fact he did by ratifying the agreement subsequently.

20. Before we part with the matter, we would like to record that prior to hearing the arguments, we tried to see if the matter could be settled. The appellant is of advanced age and keen to a decree of divorce. As far as the respondent is concerned, she has placed on record as to how she was treated with cruelty by the appellant. In that view of the matter, we asked Mr. Gokhale, learned Counsel for the respondent, whether the respondent would agree to grant a divorce, if the appellant agreed to adequate maintenance for her and for her children. The appellant though keen for a divorce was not agreeable to pay an appropriate amount. But that apart, Mr. Gokhale, on instructions of the respondent, stated that as disclosed from the appellant's evidence itself, the appellant had not inquired about his children or wife since about 1980 nor provided any amount for their education and upbringing. It is the respondent who did all sorts of manual work including cooking in house-holds and arranging tiffins. That is how with her meagre income and support from the relatives of the appellant she brought up the children. Her daughters were married, she had grand-children and her son was also brought up well. At this stage of her life, she did not want to have the stigma of being a divorce for getting a few thousand of rupees. Mr. Gokhale stated that now her requirement was essentially confined to herself and she will continue to provide for herself, by cooking in other house-holds and arranging tiffins hereafter also as she has done for the past she did it for over 20 years. In the circumstances, we could not do anything further except to hear the matter.

21. In the circumstances the appeal is dismissed with costs fixed at Rs. 2,500/-.