Unknown vs Mrs. Nanda Anil Satoshe
2013 Latest Caselaw 353 Bom

                                                                                                10.FA1113_2012


    Vidya amin
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIVIL APPELLATE JURISDICTION




                                                                                              
                                   FIRST APPEAL NO. 1113 OF 2012
                                               WITH
                    CIVIL APPLICATION NO. 2264 OF 2012 IN F..A. NO. 1113 OF 2012




                                                                      
                                                  
                 Anil Kondiba Satoshe                         ....   Appellant
                       vs.
                 Mrs. Nanda Anil Satoshe                      ....   Respondent




                                                                     
                 Mr. B.G. Yewale for the appellant.
                 Mr. G.M. Salunkhe for the respondent.
                   




                                                       
                                          CORAM :   MRS. MRIDULA BHATKAR, J.

                                           DATE     :  16th December, 2013.
                 ORAL JUDGMENT
                                      
                        Admit.     Notice   made   returnable   forthwith.     By   consent,   the 
                                     

appeal is heard finally at the stage of admission.

2. This Appeal arises out of the judgment and order dated 27 th

April, 2012 passed by the Civil Judge, Senior Division, Thane in a

Marriage Petition No. 382 of 2010 filed for restitution of conjugal right.

3. The appellant/husband and respondent/wife got married on 16 th

May, 2008 and they both started residing together at the residence of

the appellant. On 25th September, 2009 a girl child named Durga was

born out of this wedlock. The respondent went to her maiden home for

delivery, but she did not come back thereafter and the appellant and his

mother brought five months old baby back to their house. It is the case

of the appellant that though the appellant requested the respondent to

come and stay with him and lead a matrimonial life, she was always

reluctant. It is the contention of the appellant that the respondent used

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to fight on petty issues and also to shirk from doing domestic work,

because of which his mother had to take the responsibility of the entire

domestic work. It is the case of the appellant that the respondent was

not ready to reside with him along with his parents but she wants to

reside with him in a separate residence. The respondent used to nag

the appellant for buying a separate room. Considering the financial

condition, it was not possible for the appellant to have a separate house

and also to look after his parents in the other house. It is the case of

the appellant that the respondent was, therefore, not happy and so she

did not came back after the delivery to stay with him.

3. Per contra, the respondent-wife has denied all the allegations and

averments raised in the Marriage Petition. It was contended that the

appellant-husband and his mother used to harass and abuse her and

she was driven out of the house. It is the case of the respondent that

five months after the delivery, her husband and mother-in-law came to

her maiden house and literally snatched the baby girl and returned

back to their house. The respondent has specifically denied that she

has no desire to continue her married life but she is always interested

to stay with the appellant in a separate house and lead a married life

with him.

4. The Learned Judge framed issue on restitution of conjugal rights

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whether the respondent has visited the appellant without any good and

justifiable cause or not. The appellant and respondent both have filed

their affidavits in lieu of examination-in-chief and were cross-examined

by their respective counsels. After considering their evidence, the

learned Judge answered the issue in negative and dismissed the

petition.

5. The learned counsel for the appellant submitted that the

contention raised by the respondent-wife about forcibly taking the child

from her custody is entirely false. He pointed out that no police

complaint was lodged by the respondent. If that would have been true,

then she would have definitely approached the police for her child. He

further submitted that there is no good reason for the respondent to

leave the house and stay with her parents at her maiden house. He

further submitted that the respondent does not want to stay with him

only because she has been insisting to have a separate house and she

does not want to stay with her in-laws. The learned counsel submitted

that the trial Court ought to have considered that there is no good

reason to leave the company of the appellant.

6. The learned counsel for the respondent while assailing the

submissions of learned counsel for the appellant has submitted that the

respondent-wife is always ready and willing to stay with the appellant

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and continue her married life. However, due to certain circumstances,

she could not go back for want of sufficient privacy in the house. The

learned counsel drew my attention to two notices dated 29 th April,

2010 and 24th May, 2010 sent by the appellant to the respondent. The

learned counsel for the respondent pointed out that in the said notices,

the appellant has expressed his wish to untie a matrimonial knot and

also to give divorce to her. He submitted that the respondent is from

the village and the appellant is residing in a house of one room kitchen

in Navi Mumbai where all the family members, i.e., appellant,

respondent, small child, mother-in-law, father-in-law, brother-in-law

stay together and sleep in one room. He submitted that, on

instructions, he found that this caused great embarrassment to the

respondent and therefore, though she is willing to stay with the

appellant, she is constrained to stay with him.

7. Perused the judgment, record and proceedings, The issue of

custody of girl child Durga, who is now four years old is pending before

the mediator at Taluka Gandhinglaj, District Kolhapur. Admittedly, the

child is staying with her father since she was five months old. After

going through the evidence and her submissions, it is found that there

is no such good reason for the parties to stay separately and

discontinue their married life. A fact that the child has been staying

with her father is not denied. The reason for the fights and discord is

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mainly for the reason of not having enough privacy to the couple due

to paucity of space in the house. The evidence on the point of

harassment or torture which is tendered by both the parties is not of

any serious nature, but the incidents are on the natural wear and tear

in the married life. Perused the notice dated 24 th April, 2010 sent by

the appellant to the respondent. In that notice, the appellant has

mentioned that if she won't come back and reside with him, then he

could be constrained to take appropriate legal action including divorce.

In the notice dated 24th May, 2010, the appellant has also mentioned

about the attempts made in the several meetings during mediation,

however, they all failed and if at all she would not come back, then he

would be constrained to take legal action. He also expressed that it is

difficult to join her in the Society. There is one application given by the

appellant dated 21st June, 2010 about mental harassment by the

respondent. After going through these notices, it is found that the

appellant is keen to reside and cohabit with her and to continue their

married life.

8. On this background, the grievance made by the respondent is

required to be examined. The respondent is a village girl. She is

residing with her in-laws including her brother-in-law in a small one

room kitchen house in Navi Mumbai. It appears from the submissions

that she is continuously demanding a separate residence to her

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husband. As rightly pointed out by the learned counsel for the

respondent that the respondent-wife needs sufficient privacy to cohabit.

She, therefore, is reluctant to stay with her in-laws. She finds it

difficult to get enough room to establish emotional as well as physical

dialogue with her husband. The issue is a very delicate but the reason

is very basic and true, which is to be appreciated being her natural

need of body and mind. I am of the view that this problem can be

sorted out with mature approach. No sufficient reason has been

pointed out by the appellant that respondent has left his company

without any good cause. The demand of privacy to establish her

matrimonial relationship and to have good dialogue with her husband

in all the respect is undoubtedly a justifiable cause and the view taken

by the trial Court rejecting the petition cannot be faulted with. No

interference is called for in the judgment and order passed by the trial

Court.

8. Appeal is dismissed.

9. In view of dismissal of Appeal, Civil Application does not survive

and the same is accordingly disposed of.

(MRS. MRIDULA BHATKAR, J.)

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