Bombay High Court
Hemant Ramakant Karnik vs Smita Hemant Karnik on 13 April, 2016
Bench: A.S. Oka
rpa 1/22 fca-205-206-07.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 205 OF 2007
AND
FAMILY COURT APPEAL NO.206 OF 2007
A .. Appellant
V/s.
B .. Respondent
......
Mr. Shardul Singh i/b. Mr. R. A. Kale and Mr. Gajendra S. Kadam,
Advocate for the Applicant - Appellant (Husband).
Mr. Y. S. Bhate, Advocate for the Respondent (Wife).
......
CORAM : A.S. OKA AND P.D. NAIK, JJ.
DATED : APRIL 13, 2016.
ORAL JUDGMENT (Per A.S. Oka, J.)
Considering the allegation and counter allegations
made, we direct that names of the parties to the Appeal will not
be uploaded and, therefore, we are describing the parties to the
Appeal as "A" and "B", respectively.
2 Both the Appeals arise out of the common judgment
by the learned Judge of the Family Court at Bandra, Mumbai in
Petition No. A-1867 of 1998 and Petition No. C-206 of 1998.
Petition No. A-1867 of 1998 was filed by the husband against the
rpa 2/22 fca-205-206-07.doc
wife for dissolution of marriage on the ground of cruelty. Petition
No. C-206 of 1998 was filed by the wife seeking maintenance
under Section 18 of the Hindu Adoption and Maintenance Act,
1956.
3 The marriage between the parties was solemnized on
27th November, 1994 as per the Hindu Marriage Act, 1955 (for
short "the said Act of 1955"). It appears that at least from the
year 1998, the parties are residing separately. By the impugned
decree, the petition for divorce filed by the husband was
dismissed. The petition filed by the wife for maintenance was
decreed. The husband was directed to pay maintenance at the
rate of Rs.7,000/- per month to the wife with effect from 29 th
August, 2007. Hence, these are the two Appeals preferred by the
husband.
4 We may note here that when these Appeals were
taken up for hearing in November 2013, an application being
Civil Application No.388 of 2014 was made by the husband
seeking permission to amend the petition for divorce on the basis
of subsequent events. The subsequent event was of the acquittal
of the husband and his other family members by judgment and
rpa 3/22 fca-205-206-07.doc
order dated 15th April, 2014 passed by the learned Additional
Chief Metropolitan Magistrate, 9th Court Bandra, Mumbai. The
husband and his relatives were prosecuted for the offences
punishable under Section 498A, 406, 354 read with Section 34 of
the Indian Penal Code. By order dated 12 th November, 2014, the
said Civil Application was allowed. Additional issue was framed
which reads thus:
"Whether the petitioner proves the ground of cruelty
as set out in paragraph 19A of the petition?"
Parties were permitted to lead evidence on the
additional issue and a finding of the learned Judge of the Family
Court thereon was called for on the said issue. Accordingly,
parties appeared before the Family Court. Additional written
statement was filed by the wife to the amended petition for
divorce. By the judgment and order dated 13 th April, 2015 the
learned Judge of the Family Court came to the conclusion that the
husband has failed to substantiate the allegation of cruelty on the
basis of the judgment of acquittal dated 15th April, 2013.
5 We may note here that the said judgment and order
dated 13th April, 2015 has been challenged by the husband by
filing a memorandum of objection.
rpa 4/22 fca-205-206-07.doc
6 It is not necessary for us to reproduce in detail the
allegations and counter allegations made by the parties,
considering the nature of the submissions made by the leaned
counsel appearing for the parties. The first submission of the
learned counsel appearing for the husband - appellant is that
considering the findings recorded by the learned Magistrate
while acquitting the husband and his other family members, the
allegations of cruelty stand established. His submission based
on the judgment of the learned Magistrate is that the case of the
wife was found to be false. He pointed out that apart from the
husband, his parents and sisters were prosecuted. The case went
on the from 1999 till 15th April, 2014. In the meanwhile, the
husband's mother died. He submitted that though an Appeal
preferred by the wife under Section 372 of the Code of Criminal
Procedure, 1973 against the order of acquittal may be pending in
the Sessions Court, the said Appeal is not a continuation of the
proceedings of the trial. He submitted that the findings recorded
by the learned Magistrate show that the wife could not
substantiate her allegations of commission of crime and in fact,
an inference is drawn that the allegations are false. He urged that
the said findings are itself are sufficient to come to a conclusion
that due to the said prosecution, mental cruelty was caused to the
rpa 5/22 fca-205-206-07.doc
husband. He, invited our attention to the law laid down by the
Apex Court in the case of K. Shrinivas Rao Vs. D.A. Deepa1.
He submitted that in the facts of the case before the Apex Court
though Appeal was pending against an order of acquittal of the
husband and other relatives for the offence punishable under
Section 498A of the Indian Penal Code, the Apex Court on the
basis of the conclusions recorded in the order of acquittal came
to the conclusion that prosecuting the husband amounts to
causing mental cruelty to him.
7 He invited our attention to the averments made by
the husband in paragraph 14 of the petition wherein he has
alleged that the wife used to make all sorts of allegations
including the allegation about bad character of the husband.
He pointed out that in paragraph 14, it is averred that the wife
used to make such allegations in presence of the friends of the
husband. Thereafter, he invited our attention to the averments
made in the written statement while dealing with the paragraph
14 of the petition. In paragraph 12 of the written statement, the
wife denied the said allegation but came out with the specific
allegation that the husband is of a loose character. He pointed
1 (2013) 5 SCC 226
rpa 6/22 fca-205-206-07.doc
out the affidavit in lieu of the examination-in-chief of the wife in
which she has repeated the said allegation. He invited our
attention to the evidence of witness Shri Ajit Marathe examined
by the husband in support of his case that the wife used to make
allegations against the husband that he is of a loose character
and that he is addicted to vices. He submitted that the said
allegations pertaining to the character were made in the written
statement of the wife which have not been substantiated at all
and, therefore, this itself is sufficient to prove the allegations of
mental cruelty. As far as the Appeal against decree of
maintenance is concerned, he submitted that though the wife
could not substantiate the allegations regarding the income of the
husband, the Family Court has granted maintenance of Rs.7,000/-
per month. He submitted that in absence of any specific finding
about the income of the husband, such a decree could not have
been passed especially when there is a material on record to
show that even the wife was earning at one stage and that she is
capable of earning.
8 The learned counsel appearing for the wife supported
the decree of maintenance. He also supported the finding
recorded by the learned Judge of the Family Court on the
rpa 7/22 fca-205-206-07.doc
additional issue framed by this Court by contending that mere
acquittal is no ground and in any case, a substantive Appeal
against the order of acquittal is pending before the Sessions
Court. So far as the allegations made in the written statement of
the wife are concerned, he submitted that there is no specific
ground urged that making such allegations amounts to mental
cruelty. He invited our attention to the affidavit in lieu of
examination-in-chief of the wife and urged that there is no
challenge in the cross-examination of the wife to the specific
allegations made by her in her affidavit-in-lieu of the examination-
in-chief. He submitted that, therefore, it cannot be said that the
allegations made by the wife remain unsubstantiated. He
submitted that apart from the fact that this is not the ground
taken before the Family Court, even in the Memorandum of
Appeal, this ground is not agitated.
9 We have given careful consideration to the
submissions. The first issue is regarding the legality and validity
of the decree of maintenance passed by the learned Judge of the
Family Court. The first issue framed by the learned Judge of the
Family Court was whether the wife was able to maintain herself.
This was in the context of the allegation that the wife was
rpa 8/22 fca-205-206-07.doc
working. We have perused the evidence of both husband and wife
on this aspect. The case made out by the respondent - wife
seems to be that the husband was doing business as a contractor
and was earning income of Rs.20,000/- per month and in addition,
he has having a Tours and Travels business. The contention of
the husband was that at present he is unemployed. As far as the
alleged income of the wife is concerned, what was brought on
record was that the company in which the wife was working has
closed down. The learned Judge of the Family Court recorded a
finding that the husband could not establish that the wife has any
source of income. In the absence of any specific evidence to
show that on the date of filing of the petition or even thereafter,
the wife had a source of income, we find nothing wrong with the
finding recorded by the Family Court that the wife was unable to
maintain herself. After considering the evidence of the husband,
the learned Judge of the Family Court held that the husband was
working as a contractor and was having Tourist business.
Moreover, in the cross examination, the husband admitted that an
Ambassador Car was registered in his name in the year 1998 and
the said car was sold by him in the year 2001. He also admitted
that there are two other vehicles available for running the
business of tour and travels. Considering this material on record,
rpa 9/22 fca-205-206-07.doc
the Family Court has granted maintenance of Rs.7,000/- per
month as of the year 2007. We finding nothing wrong with the
said finding.
10 Now, we turn to the submissions made by the learned
counsel appearing for the husband on the additional issue based
on the order of acquittal of the husband and his family members
in a prosecution before the learned Magistrate. Paragraph 19A
was added ig to the petition for divorce. Paragraph 19A
incorporates a statement of fact regarding the order of acquittal.
Secondly, it is alleged that the wife failed to establish or
substantiate the allegations of cruelty before the criminal Court.
It is stated that the mother of the husband died during the
pendency of the trial.
11 There is no allegation made about the manner in
which the trial proceeded from the year 1999 to 2014. We have
perused the affidavit in lieu of examination-in-chief of the
husband which is at Exhibit-48 which is nothing but a
reproduction of paragraph 19A of the petition. There is a short
cross-examination made by the wife. Only documentary evidence
produced by the husband was a certified copy of the judgment
rpa 10/22 fca-205-206-07.doc
and order dated 15th April, 2015 of the acquittal. Even a copy of
the Roznama of the proceedings was not produced. Certified
copies of depositions were not produced. The wife also deposed
by filing an affidavit in lieu of examination-in-chief which contains
denials. She was cross-examined by the husband. Only material
suggestion given is that due to the said criminal case, the
husband and his family members suffered mental and physical
agony as the criminal case was a hanging sword. The suggestion
given in paragraph 3 of the cross-examination of the wife is that
the mother died on 18th September, 2003 due to brain
hemorrhage. Further suggestion was given that the mother died
due to pendency of criminal case. The correctness of the said
suggestion has been denied. We must note here that that is not
the ground pleaded in paragraph 19A of the petition for divorce.
It is not the case made out by the husband that due to any default
on the part of the wife that the trial prolonged and it remained
pending from 1999 to 2014.
12 The learned counsel appearing for the husband relied
upon a decision of the Apex Court in the case of K. Shrinivas
Rao (Supra) by submitting that in the facts of the case before
the Apex Court, the Appeal against order of acquittal for the
rpa 11/22 fca-205-206-07.doc
offences punishable under Section 498A of the Indian Penal Code
was pending. The law laid down by the Apex Court in paragraph
16 reads thus:
"16. Thus, to the instances illustrative of mental
cruelty noted in Samar Ghosh, we could add a few
more. Making unfounded indecent defamatory
allegations against the spouse or his or her relatives
in the pleadings, filing of complaints or issuing notices
or news items which may have adverse impact on the
business prospect or the job of the spouse and filing
repeated false complaints and cases in the court
against the spouse would, in the facts of a case,
amount to causing mental cruelty to the other
spouse."
13 The factual aspect of the case before the Apex Court
is considered in paragraph 28. Paragraph 28 reads thus:
"28. Pursuant to this complaint, the police registered
a case under Section 498-A of the IPC. The appellant-
husband and his parents had to apply for anticipatory
bail, which was granted to them. Later, the
respondent-wife withdrew the complaint. Pursuant to
the withdrawal, the police filed a closure report.
Thereafter, the respondent-wife filed a protest
petition. The trial court took cognizance of the case
rpa 12/22 fca-205-206-07.doc
against the appellant-husband and his parents (CC
No. 62/2002). What is pertinent to note is that the
respondent wife filed criminal appeal in the High
Court challenging the acquittal of the appellant-
husband and his parents of the offences under the
Dowry Prohibition Act and also the acquittal of his
parents of the offence punishable under Section 498-
A of the IPC. She filed criminal revision seeking
enhancement of the punishment awarded to the
appellant husband for the offence under Section 498-
A of the IPC in the High Court which is still pending.
When the criminal appeal filed by the appellant-
husband challenging his conviction for the offence
under Section 498-A of the IPC was allowed and he
was acquitted, the respondent-wife filed criminal
appeal in the High Court challenging the said
acquittal. During this period respondent-wife and
members of her family have also filed complaints in
the High Court complaining about the appellant-
husband so that he would be removed from the job.
The conduct of the respondent wife in filing a
complaint making unfounded, indecent and
defamatory allegation against her mother-in-law, in
filing revision seeking enhancement of the sentence
awarded to the appellant-husband, in filing appeal
questioning the acquittal of the appellant-husband
and acquittal of his parents indicates that she made
all attempts to ensure that he and his parents are put
in jail and he is removed from his job. We have no
rpa 13/22 fca-205-206-07.doc
manner of doubt that this conduct has caused mental
cruelty to the appellant-husband."
14 Thus, in the facts of the case before the Apex Court,
it was not merely an acquittal in the criminal case. In this case,
the wife and members of her family filed complaints with the
employer of the husband so that he would be removed from the
job. In the complaint, unfounded indecent defamatory allegations
against the mother-in-law were made. All that the Apex Court
holds by the said decision is that filing of complaints which may
have adverse impact on the other spouse and especially on his
employment, filing of repeated false complaints and the cases in
the Court against the spouse may in the facts of a given case
amount to causing mental cruelty.
15 The said decision of the Apex Court was considered
by a Division Bench of this Court to which one of us (A.S. Oka, J.)
is a party in the case of Mr.M vs. Mrs. M.2 Paragraph 27 of the
said decision reads thus:
"27. As held by the Apex Court, whether a particular
act will constitute cruelty or not will depend upon the
facts and circumstances of each case. Whether an
2 2014(2) Mh.L.J. 825
rpa 14/22 fca-205-206-07.doc
order of acquittal in criminal prosecution lodged at
the instance of the spouse amounts to cruelty will
depend upon the facts and circumstances of each
case. Whether the criminal Court has recorded a
finding that the prosecution case was false is again
not a clinching factor. Considering the evidence on
record, the Matrimonial Court will have to decide
whether the prosecution which resulted into acquittal
will amount to an act of cruelty. In a given case,
depending upon the evidence on record, even if the
acquittal is on the ground that the charge could not
be substantiated and even if there is no finding
recorded by the Criminal Court that the prosecution
case was false, there can be a case of cruelty. It
depends on the manner in which the complaint is filed
and prosecuted."
(Underlines supplied)
16 What is held by this Court is that mere acquittal in a
criminal case by itself will not amount to cruelty. Whether the
criminal court has recorded a finding that prosecution case was
false is not a clinching factor. This Court observed that all this
depends on the facts and circumstances of each case.
17 Coming back to the facts of the case, as far as
additional evidence is concerned, it is only in the form of a certified
rpa 15/22 fca-205-206-07.doc
copy of the judgment of the acquittal of the criminal Court. Even
true copies of notes of evidence in the criminal case are not filed
on record. Therefore, we are of the view that only on the basis of
the judgment of acquittal, in the facts of the present case, it
cannot be held that cruelty was established by the husband.
18 Now, we turn to the other ground canvassed by the
learned counsel appearing for the husband. It will be necessary
to make a reference to the assertions made in the petition for
divorce. In paragraph 14, the husband has stated thus:
14. The petitioner states that for the last two years
she has been making all sorts of allegations against
the petitioner. She personally met his friends and
made allegations that (1) That Hemant the petitioner
herein is addicted to alcohol, (2) that he is a
womaniser, (3) Girls vist the Zaveri Niwas Flat, (4)
Keeping bad character as paying guests, (5) indulging
in illegal activities. The respondent made these
allegations against the petitioner to his friends. Some
of them are (1) Mr. Ajit Marathe, (2) Mr. Kamlesh
Dalvi, (3) Mr. Milind Kachare, (4) Mr. Rakesh
Matchar, (5) Sudesh Thakur. The abovesaid friends
personally appraised the petitioner about the
allegations made by the respondent."
rpa 16/22 fca-205-206-07.doc
19 In response to paragraph 14, in paragraph 12 of the
written statement of the wife, she has stated thus:
"12. With reference to para 14, the Respondent
denies all allegation made therein. The Respondent
puts the Petitioner to have strict proof thereof. The
Petitioner is a loose character person, when the
Respondent used to obstruct of it, he used to abuse
and assaults the Respondent mercilessly."
(Underline supplied)
Thus, in the petition for divorce itself a specific case
was made out by the husband that the wife was making all sorts
of allegations against him including the allegation pertaining to
his character which were reproduced in paragraph 14. In fact,
the specific case made out is that such allegations are being
made by her when she personally meets the husband's friends.
Thus, making allegations of loose character against the husband
is the specific case made out in the petition for divorce. In the
written statement, in paragraph 12 which is quoted above, the
wife reiterated the said allegations by stating that the husband is
"a loose character person". We have carefully perused the
evidence. In the affidavit in lieu of examination-in-chief of the
husband, he has reiterated in paragraph 19 what he has stated in
rpa 17/22 fca-205-206-07.doc
paragraph 14 of the petition. In Clause (c) of paragraph 25 of the
affidavit in lieu of examination-in-chief, he has stated that the
wife has indulged in various illegal activities and/or matrimonial
wrongs. As far as the cross-examination of the husband by the
advocate for the wife is concerned, we find that there is no
specific cross-examination made on what is stated in paragraph
19 of the affidavit in lieu of examination-in-chief. In fact, in
paragraph 40, a suggestion appears to have been given that the
husband has alleged that the wife is of a loose character.
ig The
correctness of the said suggestion has been denied by the
husband.
21 In support of what is averred in paragraph 14 of the
petition, the husband examined Shri Ajit Shankar Marathe as his
witness. In paragraph 8 of his examination-in-chief, he has stated
thus:-
"8. I state that the said "Y" then started telling me
that the said "X" is addicted to alcohol and he is
womanizer. She further told me that many Girls visit
the Zaveri Niwas flat he is indulge in illegal activities
and how he is keeping bad character. I further state
that as I know that the said "X" is not having any bad
habits. I did not believe her and she is making such
rpa 18/22 fca-205-206-07.doc
allegations out of frustration as she failed in
obtaining the premises at Zaveri Niwas. From the
conduct of the said "Y" I can easily tell that the said
"X" was not leading happy married life and his life is
messed by the said "Y" due to her misbehaviour and
she had only intention to grab the premises at Zaveri
Niwas and the huge amount from his family
members."
(the name of the parties are marked as "X" & "Y",
respectively)
In paragraph 9 of the cross-examination, it is brought
on record that the said witness knew the wife from 1990. In fact,
he stated that the wife was working with him for six months in
the year 1990. A suggestion given in the cross-examination was
that the wife worked only for two months. The correctness of the
said suggestion is denied by the said witness. He denied the
correctness of the suggestion that the allegations made by him in
the examination-in-chief against the wife were false.
22 The wife examined herself by filing her affidavit in
lieu of examination-in-chief. She did not examine any other
witnesses. In paragraph 21, she reiterated what she stated in her
written statement. It appears that there is an obvious
typographical error in her affidavit in lieu of examination-in-chief,
instead of saying that the petitioner is a person of loose
rpa 19/22 fca-205-206-07.doc
character, she has stated that the respondent is a loose character
person. She was herself the respondent in the matrimonial
petition. In short, a very serious allegation made by her in her
written statement about the loose character of the husband is
reiterated by her in her examination-in-chief.
23 In the cross-examination of the husband, nothing is
put to the husband on this aspect. The same is the case with the
cross-examination of the witness Shri Ajit Marathe.
ig There is
absolutely no effort made by the wife to substantiate the said
allegation affecting the character of the husband.
24 As stated earlier, the fact that the wife was making
such allegations is very much pleaded in the petition for divorce.
It is a part of the conduct amounting to cruelty pleaded by the
husband.
25 We have already reproduced what is held by the Apex
Court in paragraph 16 of the decision in the case of K. Shrinivas
Rao (Supra). Making of unfounded, indecent, defamatory
allegations against the spouse in the pleading is an instance of
causing mental cruelty. In the facts of the case, apart from
rpa 20/22 fca-205-206-07.doc
making unfounded allegations about the loose character of the
husband in the pleadings and evidence, the evidence of witness
Ajit Marathe proves that such allegations were made by the wife
in presence of the said witness.
26 We have also make a reference to the decision of the
Apex Court in the case of Vijay Kumar Ramchandra Bhate Vs.
Neela Vijay Kumar Bhate3, wherein the Apex Court has taken a
view that allegations of extra marital relationship is a grave
assault on the character, honour, reputation and status of the
rival spouse. The Apex Court held that such allegations are of
such quality, magnitude and consequence as to cause mental
pain, agony and suffering amounting to the cruelty in matrimonial
law.
27 As pointed out earlier, the wife has miserably failed to
substantiate the said allegations of loose character made against
the husband and, therefore, this is a fit case to pass a decree of
divorce on the ground mentioned in Clause (i-a) of Sub-section (1)
of Section 13 of the said Act of 1955.
3 2003 (6) SCC 334
rpa 21/22 fca-205-206-07.doc
28 Hence, we pass the following order:
:: O R D E R ::
(i) The Family Court Appeal No.205 of 2007 is
allowed and decree of dismissal of petition No.
A-1867 of 1998 is hereby quashed and set aside;
(ii) The Petition No. A-1867 of 1998 stands decreed
and the marriage solemnized between the
parties on 27th November, 1994 stands dissolved
under Clause (ia) of Sub-section 1 of Section 13
of the Hindu Marriage Act, 1955;
(iii) There will no order as to costs.
:: FAMIL COURT APPEAL NO.206 OF 2007 ::
(i) Family Court Appeal No.206 of 2007 stands
dismissed;
(ii) There will no order as to costs.
rpa 22/22 fca-205-206-07.doc
29 At this stage, the learned counsel appearing for the
wife prays for stay of the decree of divorce passed in Appeal
No.205 of 2007. The said prayer is opposed by the husband.
30 To enable the wife to approach the higher Court, we
direct that the decree of divorce will remain stayed for a period
of 12 weeks from today.
(P.D. NAIK, J.) (A.S. OKA, J.)
