Bombay High Court
Sau. Savita W/O Sachin Sathone vs Sachin Matotrao Sathone on 8 August, 2016
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 248 OF 2014
APPELLANT:- Sau. Savita w/o Sachin Sathone, Aged about
35 years, Occ: Household, R/o C/o Bhauraoji
Ghodmare, Behind Sanjay Gandhi High School,
Yeshwantnagar, Hinganghat.........(On R.A).
...VERSUS...
RESPONDENTS :- Sachin Marotrao Sathone, Aged about 41
ig years, occ: Business, R/o Flat No.202, Jai Ma
Durga Apartments, Jagnade Chouk,
Nandanwan, Nagpur...... (on R.A)
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Mrs. Jyoti Dharmadhikari, counsel for the appellant.
Mrs. Varsha Wasu (Dhoble), counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI, JJ.
DATED : 08.08.2016
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
The Family Court Appeal is ADMITTED and heard 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, dated 22.01.2013, allowing the Hindu
Marriage Petition filed by the respondent-husband and dissolving the
marriage between the parties by a decree of divorce.
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2. Few facts giving rise to the Family Court Appeal are stated thus :-
The appellant-wife (hereinafter referred to as 'the wife' for the
sake of convenience) and the respondent-husband (hereinafter referred
to as 'the husband') were married at Hinganghat as per Hindu rites and
custom, on 24.09.2007. It is the case of the husband in the Hindu
Marriage Petition filed by him for grant of a decree of divorce that after
the marriage, the parties resided together at Nagpur in a joint family
consisting of the parents of the husband and his sister. It is pleaded
that the wife behaved properly for a few days after the marriage. It is
pleaded that a few days later, the wife started disrespecting her in-laws
and abusing them. It is pleaded that the wife desired to separate from
the joint family and live in a nuclear family with her husband. It is
pleaded that the wife refused to do the routine household work by
stating that she was not a maidservant to cook and do the household
work. It is pleaded that though the husband tried to convince the wife
that she would be required to do the normal duties of a wife, the wife
did not mend her ways. It is pleaded that on the day of the death of the
father of the husband, i.e. on 07.03.2007, the father of the wife asked
the husband to get his name mutated in the revenue records on the
entire family property left behind by the father. It is pleaded that the
wife always objected to the visits of the husband's relatives to their
house and often picked up quarrel after the niece and the nephew of the
husband visited the matrimonial home. It is pleaded that the wife used
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to create a scene when the husband declined to accept her demand for a
separate residence. It is pleaded that the wife used to visit her parental
home frequently and the parents of the wife interfered in the family
affairs of the husband and wife, unnecessarily. It is pleaded that on
10.05.2008, the father of the wife took the wife to the parental home
against the wishes of the husband and without his consent. It is pleaded
that when a meeting of the family members was called on 15.07.2008,
the wife apologized for her acts and promised to behave properly in
future. It is pleaded that after the said assurance, the wife behaved well
for a few days and then, started repeating the same things that she did
earlier. It is pleaded that the wife threatened the husband that she
would pour kerosene on her person if she was not permitted to go to
the parental home. It is pleaded that the wife threatened the husband
that she would implicate him and his family members in false
complaints. It is pleaded that the wife went to the extent of saying that
the husband is impotent. It is pleaded that though there was no issue
from the wedlock and medical treatment was suggested for the wife, the
wife declined the treatment. It is pleaded that the behaviour of the wife
was whimsical and the wife was very adamant. It is pleaded that not
only the wife but, her family members created an unhealthy atmosphere
in the matrimonial home. It is pleaded that when the mother of the
husband was not well and was hospitalized, the wife did not realize her
duties and failed to help her mother-in-law. It is pleaded that the wife
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insisted on going to her parental home in the month of May-2009,
despite the illness of her mother-in-law and sister-in-law and threatened
to commit suicide if she was not permitted to do so. It is pleaded that
in the aforesaid background, the husband was required to drop the wife
to the paternal home on 19.05.2009. It is pleaded that in the presence
of about eight to ten persons, the wife started abusing him and since he
was not permitted to enter the parental house of the wife, he returned
back to Nagpur. It is pleaded that after the husband received a call
from Mr.Mogre to come to Mr.Borkar's house, the husband was insulted
in filthy language when he went there. It is pleaded that the husband
was never invited by his in-laws and despite the performance of the
marriage, the husband had to live in pain and agony. On the aforesaid
pleadings, the husband sought a decree of divorce on the ground of
cruelty.
3. The wife filed the written statement and denied the claim of the
husband. The wife denied that she behaved badly with her in-laws or
the husband. The wife denied that she declined to do the routine
household work by saying that she is not a maidservant. The wife
denied that her father had asked her husband on 07.03.2007, after the
death of his father, to get his name mutated in the revenue records. It
is denied that the wife insisted for separate residence from the joint
family. The wife denied that she often wanted to visit her parental
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home and her parents interfered in her marital life. The wife denied
that the father of the wife forcibly took the wife to her parental home
on 10.05.2008 against the wishes and consent of her husband. It is
denied by the wife that she did not look after her mother-in-law and
sister-in-law when they were ill and wanted to leave the matrimonial
home. It was denied that her mother-in-law suffered from hypertension
due to the bad behaviour on the part of the wife. It is denied that in the
month of May-2009, the wife insisted for returning to her parental
home and, hence, the husband had to reach her to her parental home.
It is denied that in Mr.Borkar's house, the wife created a scene and
abused to husband in filthy language. It is denied that the husband was
never invited by her parents in her parental home. The wife denied that
the husband had to suffer mental agony and pain due to the ill-
behaviour on the part of the wife. The wife sought for the dismissal of
the Hindu Marriage Petition.
4. In her specific pleadings, the wife pleaded that she was ill-treated
by her mother-in-law and sister-in-law and they always abused her in
filthy language without any fault on her part. The wife pleaded that she
was often beaten up by the husband on the instigation of his family
members but, she tolerated the beatings with a hope that one day her
husband would mend his ways. It is pleaded that the wife left the house
of the husband after she was mercilessly beaten by the husband. The
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wife pleaded that the husband had suppressed the aforesaid material
facts and had filed the Hindu Marriage Petition on false and baseless
allegations.
5. On the aforesaid pleadings of the parties, the Family Court
framed the issues and the parties tendered the evidence. The husband
examined himself and also examined his friend Atul, who used to drive
the car to go to Hinganghat. The husband also examined Mr.Ramesh
Giradkar, who was the husband of the aunt of the husband. The wife
examined herself and also examined Mr.Devendra Mogre, as her
witness. On an appreciation of the evidence on record, the Family
Court, by the judgment dated 22.01.2013 allowed the petition filed by
the husband and dissolved the marriage between the parties by a decree
of divorce. The Family Court directed the husband to pay an amount of
Rs.2,00,000/- to the wife in lump sum and a sum of Rs.2,500/- per
month towards alimony. The husband has independently challenged
the said order in another Family Court Appeal, with which we are not
concerned as this judgment is being rendered in the Family Court
Appeal filed by the wife against the judgment of the Family Court
granting a decree of divorce.
6. Mrs.Jyoti Dharmadhikari, the learned counsel for the wife,
submitted that the Family Court was not justified in allowing the
petition filed by the husband. It is submitted that the allegations made
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by the husband are referrable only to the normal wear and tear in a
matrimony. It is submitted that the allegations levelled by the husband
against the wife are not sufficient for granting a decree of divorce. It is
submitted that the wife desires to live with the husband and continue
the matrimonial relationship despite the ill-treatment to her but, she
was forcefully reached by the husband to her parental home, on
19.05.2009. It is submitted that within eight days of reaching the wife
to her paternal home, the husband filed the petition for a decree of
divorce on the ground of cruelty. It is stated that the husband wanted
to get rid of the wife and, therefore, after leaving her to the parental
home on 19.05.2009, he filed the petition for a decree of divorce on
27.05.2009, in a pre planned manner. It is stated that the case of the
husband that he was treated badly by the parents of the wife is not
correct and his statement that he was not permitted to enter the
parental home of the wife on 19.05.2009 is falsified by the evidence of
Mr.Mogre. It is stated that the petition is filed by the husband by
raising false and frivolous grounds. It is stated that the case of the
husband that he opposed the act of the father of the wife to take her to
the parental home within five months from the marriage is incorrect as
a wife would surely go to her parental home within a few months from
the marriage. It is stated that the Family Court has rightly held that
several allegations made by the husband are not proved and the Family
Court was not justified in accepting the case of the husband that the
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wife had threatened the husband that she would commit suicide and
falsely implicate him if she is not permitted to go to her parental home
and if he does not separate himself from the joint family. It is stated
that the case of the husband is falsified by a part of his evidence in his
cross-examination.
7. Ms Varsha Wasu, the learned counsel for the husband,
supported the judgment of the Family Court. It is submitted that the
Family Court has rightly held that the wife had treated the husband
with cruelty. It is stated that during the pendency of the Hindu
Marriage Petition, the wife had addressed a communication at Exhibit
24 to the husband in which, she had stated that the husband was
impotent for about six to seven months after the marriage was
solemnized. It is stated that levelling such allegations against a
husband and not proving them would surely tantamount to cruelty. It
is submitted that the allegations made by the husband in regard to the
threats given by the wife of committing suicide by pouring kerosene on
herself and of falsely implicating the husband are not disputed by the
wife in the written statement. It is stated that there is no denial to the
aforesaid pleadings of the husband and this fact is noted by the Family
Court while holding that the husband has been successful in proving
that the wife was threatening the husband that she would commit
suicide and falsely implicate him. It is stated that though the wife had
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pleaded that the husband was beating the wife mercilessly at the
instigation of his family members, she had failed to prove the aforesaid
fact. It is stated that though the wife had stated that her in-laws were
treating her badly and were abusing her, she had admitted in her cross-
examination that her mother-in-law and sister-in-law had treated her
well. It is stated that these aspects of the matter were rightly considered
by the Family Court while holding that the wife had treated the
husband with cruelty. It is submitted that though the husband had
clearly stated in his examination-in-chief that the wife had threatened
him that she would commit suicide and file false police complaints
against him and his family members, the wife had not cross-examined
the husband on the said statement. It is stated that the unproved
allegations of the wife that the husband was impotent for about six to
seven months from the marriage was rightly weighed by the Family
Court to hold that the wife had treated the husband with cruelty by
making false and baseless allegations against him. It is stated that
though the wife had disputed that there was a meeting in which she
had agreed to mend her ways and had apologized for the mistakes, she
gave a suggestion to the husband in this regard in his cross-
examination. It is stated that in the circumstances of the case, the
Family Court has rightly granted a decree of divorce in favour of the
husband after holding that the wife had treated the husband with
cruelty by not denying the allegations in respect of her threats to
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commit suicide and implicate him in false police complaints and in view
of the false and baseless allegations made by the wife against the
husband in her written statement as well as the notice, Exhibit 24. It is
stated that in the circumstances of the case, the Family Court has rightly
granted a decree of divorce in favour of the husband.
8. On hearing the learned counsel for the parties and on a perusal
of the original record and proceedings, it appears that the following
points arise for determination in this family court appeal :
(1) Whether the husband proves that the respondent-wife had
treated him with cruelty ?
(2) Whether the Family Court was justified in passing a decree of
divorce on the ground of cruelty ?
(3) What order ?
To answer the aforesaid points for determination, it would be
necessary to consider the pleadings of the parties and the evidence
tendered by them. It would not be necessary to reiterate the pleadings
of the parties in detail, as we have already referred to the pleadings of
the parties in the earlier part of the judgment. Since the husband had
filed the petition for a decree of divorce on the ground of cruelty, it was
necessary for the husband to prove his case. The husband had examined
himself and also examined two other witnesses. The husband had
reiterated the statements pleaded by him in the petition in his evidence
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on affidavit. The husband was cross-examined on behalf of the wife at
length. The husband had denied in his cross-examination that he used
to harass the wife for one reason or the other. The husband had denied
that he used to come late from his work after consuming liquor and he
used to beat the wife. The husband denied that in Holi festival of 2007
he had kept the wife in one vacant flat in front of the matrimonial house
and did not allow her to come out. The husband denied that his mother
and sister always quarrelled with the wife. The husband admitted in his
evidence that his mother had suffered minor paralytic attack and she
was taking treatment. The husband denied that on the day of
Mahalaxmi Poojan, he beat the wife. The husband denied that on
telephone also he threatened the wife that he would beat her. The
husband denied that he used to say that the wife was an unfortunate
and unlucky girl. The husband denied that he had beat the wife after
visiting Dr. Ambatkar. The husband denied that he was taking the
medicines of Nagbhasma etc. for increasing his potency. The husband
denied that he used to give threatening calls to the relatives of the wife.
The husband denied that whenever the relatives of the wife used to
bring fruits, the mother of the husband used to throw them in the
dustbin on the ground that some black-magic would be practiced on
them. The husband denied that on 18.05.2009, his sister threw the
clothes and articles of the wife. It was denied by the husband that he
treated the wife badly. The husband admitted that he did not lodge any
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complaint against his wife against her threats for suicide. Apart from
himself, the husband examined Atul s/o Devidas Dukre, who has drove
the husband and wife in his car to the wife's parental house at
Hinganghat. This witness deposed about ill-behaviour of the wife.
There is, however, nothing in the cross-examination of this witness to
falsify his case in the examination-in-chief. The husband examined
Ramesh Giradkar. Ramesh Giradkar stated in his evidence that wife had
left the matrimonial home in the second week of May and she declined
to return to the house. This witness stated that in the customary
meeting between the elderly members of the families, the wife had
admitted that she had committed mistakes and she had apologized for
her bad behaviour. The witness stated that the wife had agreed to
behave properly, in future. Nothing was brought out from the cross-
examination of this witness to disprove his case in the examination-in-
chief.
9. The wife had examined herself and also Surendra Borkar, her
uncle and Shri Mogre. The wife reiterated the facts stated by her in the
petition. The wife admitted in her cross-examination that her father
took her to the parental home on 10.05.2008. The wife then
volunteered that she was permitted by the husband to go along with her
father on that day. The wife admitted that on 15.07.2008, she came to
the matrimonial house along with her father, brother-in-law Mr. Mogre
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and her uncle Borkar. The wife admitted in the cross-examination that
she had not lodged any police report against the husband or his family
members in respect of the ill-treatment that was meted out to her. The
wife showed her ignorance about the date on which her mother-in-law
was hospitalized. She denied that there was a quarrel between the wife
and her sister-in-law and because of the serious quarrel, her mother-in-
law had suffered a heart attack. The wife admitted that she was taken
to Gorabai Astankar for treatment. The wife admitted in her cross-
examination that the behaviour of her mother-in-law and sister-in-law
towards her, was good. The wife stated in her cross-examination that in
the month of May-2009, the husband forcibly took her to Hinganghat in
a car and abused her on the way. The wife denied the suggestion that
she had left the matrimonial home only in view of the minor bickerings
between the parties. The wife lastly admitted that she had not issued
any notice to the husband seeking the restitution of conjugal rights.
10. Shri Borkar, the uncle of the wife, entered into the witness box,
had stated in his evidence on affidavit that the husband had said that he
does not want to live with the wife and he would get ten other women
like her. The witness stated that when the husband said that on
19.05.2009, he was not in a mood to listen to the advise of Mr. Borkar.
This witness, however, admitted in the cross-examination that he was
deposing as per the say of the wife. When the Court made a query as to
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what is meant by that, the witness stated that since the wife had told
him about his cross-examination, he was deposing as per her say. The
last witness examined on behalf of the wife was Shri Devendra Mogre.
Devendra Mogre also stated in his evidence on affidavit that on
15.07.2008, the father of the wife had taken her to the parental home
with the consent of her husband. This witness stated in his examination-
in-chief that on 18.05.2009, the husband telephonically told him to take
back the wife (that is his sister-in-law) otherwise he would leave her.
The evidence of this witness on affidavit was, however, shattered by the
evidence in his cross-examination. Mr. Mogre admitted in his cross-
examination that he did not know that the father of the wife had
brought her to the matrimonial home and he also did not know since
when the wife was residing in her parental house. This witness admitted
in his cross-examination that he was not present at the time of the
incident on 15.03.2007, about which he had stated in his examination-
in-chief. The witness stated that he was ignorant about the purpose for
which the petition was filed by the husband.
11. On a perusal of the judgment that is challenged in this Family
Court Appeal, we find that the Family Court has appreciated the
material on record, in the right perspective to grant a decree of divorce
in favour of the husband. The husband had clearly pleaded in the Hindu
Marriage Petition that the wife used to threaten him that she would
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commit suicide by pouring kerosene on herself and would falsely
implicate the husband. It is pleaded by the husband that the wife used
to threaten the husband that she would file false complaints against the
husband and his family members in the Police Station, if she was not
permitted to visit her parental home. It is surprising that though the
aforesaid facts are categorically pleaded by the husband in the Hindu
Marriage Petition, there is no denial by the wife to these material facts.
In the absence of denial in regard to the threats by the wife to pour
kerosene on her person and falsely implicate the husband the said fact
would be deemed to have been proved. It is well settled that if the
material pleading is not denied or traversed, it is deemed to have been
admitted. Apart from the pleadings, the husband had also categorically
stated the aforesaid facts in his evidence on affidavit, but the wife failed
to cross-examine the husband on this material aspect. The Family Court,
therefore, rightly held that the act on the part of the wife of threatening
the husband of pouring kerosene on herself and of falsely implicating
the husband by making complaints against him and his family members
in the Police Station, tantamount to cruelty. The Family Court rightly
considered that the pleadings as well as the evidence of the husband on
this material aspect went unchallenged. The Family Court found that
not only had the husband proved that the wife had treated him with
cruelty by threatening him that she would pour kerosene on herself and
make false complaints to the Police Authorities against him and his
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family members, but the wife had also falsely stated in the pleadings
and her evidence that she was beaten up by her husband on the
instigation of his family members, as the said allegations were not
proved. The wife had pleaded that her mother-in-law and sister-in-law
had treated her badly and had abused her and had instigated the
husband to beat her, in her cross-examination, the wife admitted that
her mother-in-law and her sister-in-law behaved well with her. The
Family Court found that levelling of false allegations against the
husband and his family members in the written statement and failing to
prove the same, by leading cogent evidence tantamounts to cruelty.
During the pendency of the Family Court Appeal, the wife had issued a
communication/notice to the husband at Exhibit-24 in which she had
categorically stated that the husband was impotent for about 6 to 7
months after the marriage. Though the wife had stated so in the
communication at Exhibit-24, she had not stated the said fact either in
her pleadings or in her evidence. The Family Court observed and
rightly so that levelling such an allegation against the husband and
failing to prove the same would tantamount to cruelty. In our view, no
husband would like to hear that he was impotent for about 6 to 7
months after the marriage, if that was not true. Such an allegation
would surely hurt a man's ego. Before levelling such an allegation
against the husband, in the notice at Exhibit-24, which is admitted to
have been sent by the wife to the husband, the wife should have given
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some though. If such an allegation was made in the notice, the wife
should have pleaded the said fact in the written statement and proved
the same by leading cogent evidence. The wife has neither pleaded in
her written statement about the impotency of the husband nor has she
led any evidence in this respect. Though certain suggestions were given
to the husband in his cross-examination in regard to the medical
treatment that he took during his stay with the wife in the matrimonial
home, there is no suggestion that the said treatment was with a view to
cure his impotency. The Family Court considered the evidence of the
witnesses examined on behalf of the husband and the cross-examination
of the witnesses examined on behalf of the wife to hold that the wife
had apologized in the meeting and had stated that she would not
commit similar mistakes again. It is observed by the Family Court that
this would prove that in the customary meeting the wife had admitted
about her adamant behaviour for which she had apologized. We do not
find any illegality in the findings recorded by the Family Court that the
husband had successfully proved that the wife had treated him with
cruelty and that he was entitled for a decree for dissolution of marriage
on the said ground. Though the Family Court has held that the husband
had failed to prove that the wife insisted on having a separate residence
and did not desire to live in the joint family, as the husband had failed
to examine his mother and sister in this regard, we do not find that the
non-examination of the mother and sister of the husband would result
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in recording the finding that the wife did not insist for a separate
residence. We do not find that the Family Court was justified in
observing that the suggestion by the father of the wife on the date of
the death of the father of the husband on 07.03.2007 to mutate his
name on the entire property, including the agricultural property left
behind by the father of the husband is unwarranted or improper. We
find that the said conduct on the part of the wife's father is absolutely
improper as on the date of the death of the father of a husband, the
father of a wife cannot suggest to the husband that he should record his
name on the entire properties left behind by his father. That is not the
time or the occasion to give this suggestion. On the same day, if such a
suggestion is given, we do not find that the same would be correct. The
observation of the Family Court that such a suggestion would not be
unwarranted or improper does not appear to be correct. We find that
no father-in-law should ask his son-in-law to mutate the son-in-law's
name on all the properties left behind his father on the very day on
which his father dies. Such an unwarranted suggestion by the father of
the wife may also have triggered further animosity between the parties.
The Family Court has rightly observed that though the husband had
failed to prove that the wife declined to do the routine household work
and cook for his family, the husband had been successful in proving that
the wife had threatened the husband on several occasions of
committing suicide by pouring kerosene on herself and of falsely
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implicating the husband and his family members. As already mentioned
herein above, the aforesaid threats coupled with the allegation in the
notice at Exhibit-24 that the husband was impotent for 6 to 7 months as
also the false allegations in the written statement that the husband used
to beat the wife at the instigation of his family members without
proving them, tantamount to cruelty. The Family Court, on a proper
appreciation of the entire material on record has rightly granted the
decree of divorce in favour of the husband. Since the findings recorded
by the Family Court are just and proper, we find no reason to interfere
with the same, in this Family Court Appeal.
12. Hence, for the reasons aforesaid, the Family Court Appeal is
dismissed with no order as to costs.
JUDGE JUDGE
APTE, GULANDE & KHUNTE
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C E R T I F I C A T E
I certify that this Judgment uploaded is a true and correct copy of
original signed Judgment.
Uploaded by : G.S.Khunte, Uploaded on : 11/08/2016
P.A.to Hon'ble Judge
