Bombay High Court

Sainand Kashinath Dhakne vs Kalpana Sainand Dhakne on 9 December, 2016

Bench: S.V. Gangapurwala

                                                                    FCA 13&14-16.odt
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                          FAMILY COURT APPEAL NO.13 OF 2016




                                                                             
                                        WITH 
                         CIVIL APPLICATION NO. 591 OF 2015 




                                                     
                                          IN 
                          FAMILY COURT APPEAL NO.13 OF 2016
                                         WITH
                          FAMILY COURT APPEAL NO.14 OF 2016




                                                    
          Sainand s/o Kashinath Dhakne                ...        Appellant
          Age 32 years, Occu: Labour,
          R/o Paithan Tq. Paithan,
          District Auranabad.




                                           
          VERSUS                  
          Kalpana w/o Sainand Dhakne,                 ...       Respondent 
          Age 28 years, Occu: Legal 
          Practitioner, R/o New Ex-
                                 
          serviceman Colony, Padegaon,
          Aurangabad.

    Mr. A. S. Barlota, Advocate for the appellant.
      


    Mrs. Preeti R. Wankhede, Advocate for the respondent.
   



                                 CORAM          :  S. V. GANGAPURWALA & 
                                                  K. L. WADANE, JJ.





                                 RESERVED ON    :  20th October, 2016.

                                 PRONOUNCED ON  :  9th  December, 2016


    JUDGMENT (Per K. L. Wadane, J.):

1. Heard the learned counsel for the parties.

2. Admit. With consent of the parties, the

Appeals are taken up for final disposal.

3. The above two appeals are directed against the

FCA 13&14-16.odt common judgment and order passed by the Family Court,

Aurangabad in Petition No.A-67/2010 and Petition No.A-

81/2011, dated 18th August, 2014.

4. The Petition No.A-67/2010 was filed by the

husband Sainand s/o Kashinath Dhakane against the

wife- Sau Kalpana w/o Sainand Dhakane on the ground of

cruelty and desertion under section 13(1)(i-a)and(i-b)

of the Hindu Marriage Act for dissolution of Marriage

and in the alternative, for judicial separation under

section 10 of the Hindu Marriage Act, 1955 (hereinafter

referred to as the Act, 1955).

5. Petition No.A-81/2011 was filed by the wife-

Sau Kalpana w/o Sainand Dhakane against the husband

Sainand s/o Kashinath Dhakane for restitution of

conjugal rights under section 9 of the Hindu Marriage

Act. Both the parties were directed to lead evidence

in respect of both the proceedings common in Petition

No. 67/2010 and accordingly they have led their oral

as well as documentary evidence in Petition No.

67/2010. To avoid the confusion and for the sake of

convenience, hereinafter the husband Sainand will be

referred as appellant and wife Sou. Kalpana will be

referred as respondent.

FCA 13&14-16.odt

6. It is the contention of appellant that he

married with the respondent on 06.12.2014 at Aurangabad

and their matrimonial ties are still in existence. The

respondent is highly qualified than the appellant and

her father is serving in Police department. Father and

brothers of the respondent are criminal in nature and

an offence under 498-A and 302 of the Indian Penal Code

is registered against them. After the marriage, the

respondent resided with the appellant for 8 to 9

months. The appellant has treated well the respondent

and has extended all the facilities including her

conjugal rights. The respondent is a pampered child of

her parents and had no intention to cohabit with the

appellant so, she was behaving irresponsibly. She

started ill-treating the respondent and his family

members on flimsy grounds. She always used to threaten

them by saying that her father is in Police department

and she will teach them lesson. The respondent always

caused mental cruelty to the appellant and his family

members. Meantime, the respondent delivered a girl

child.

7. It is further contended by the appellant that

in the month of September, 2006, the respondent

abandoned the society of the appellant on her own

FCA 13&14-16.odt accord and went to her parents' house along-with

ornaments and clothes and household articles.

Thereafter, the appellant, his family members and

respectable persons from the society have tried to

bring the respondent for cohabitation. However, the

respondent was not ready to reside with the appellant

so also the parents of the respondent were not ready to

send her to the home of the appellant. The respondent

and her parents have disclosed their intention to

breakdown the marriage and demanded huge money from

the appellant.

8. Since the appellant was intending to cohabit

with the respondent, he sent a notice to that effect

through his Advocate on 19th June, 2007. The said notice

was received by the respondent, however, no reply was

given nor she came for cohabitation.

9. On 26th June, 2007, father of the respondent had

filed a complaint against the appellant and his family

members for the offence punishable under sections 498-

A, 496, 323, 504, 506 read with section 34 of the

Indian Penal code and Sections 3 and 4 of the

Protection of Women from Domestic Violence Act, 2005,

which is still pending. Due to filing of such

FCA 13&14-16.odt complaint, the appellant and his family members are

defamed in the society.

10. On 11th July, 2007, the respondent filed a

Criminal Application M.A. No. 623/2007 for maintenance.

That application is disposed of and maintenance of

Rs.4000/- p.m. to the respondent, Rs.2000/- p.m. to

her daughter and Rs.3000/- p.m. towards house rent was

granted. The appellant and the respondent both have

challenged the said order by filing appeals and the

same are pending.

11. On 21st September, 2007, the respondent again

filed a complaint against the appellant and his

relatives for the offence punishable under section 494

and 109 of the Indian Penal Code. In that proceedings,

process is issued against the appellant and some of his

relatives. Against that order, the appellant has filed

appeal before the District & Sessions Court at

Aurangabad and the same is pending for hearing.

12. On 19th June, 2007, the father of the respondent

has filed a complaint (NC) No. 402/2007 for the offence

punishable under section 323, 504 and 506 of the Indian

Penal Code

FCA 13&14-16.odt

13. Since September, 2006, the respondent, her

parents and her relatives are threatening to the

appellant and his family members and they are given

mental and physical torture. They are also given

threats to kill them which amounts to cruelty.

14. Respondent was/is not willing to reside with the

appellant. Due to the aforesaid facts, the appellant is

mentally disturbed. There is no love and affection

between the appellant and respondent and so it is

necessary to break the marital tie between them. There

is also danger to the life of the appellant and his

family members due to the acts of the respondent and

they are living under fear and threats. So, on all

these grounds the appellant has firstly prayed for

divorce and by way of amendment, he has alternatively

prayed for judicial separation.

15. The respondent wife resisted the petition by

filing her say. The sum and substance of her petition

filed under section 9 of the Hindu Marriage Act and

the say filed by her to the petition for diverse is

that, after the marriage, the appellant treated her

well only for about six months. On 26.04.2005, the

appellant and his mother met with an accident and due

FCA 13&14-16.odt to which the behaviour of the appellant is suddenly

changed. After the marriage, when the appellant and

the respondent were residing at Shriharisiddhi Society,

Jadhavwadi, the appellant started construction of new

house and for which there was demand by the appellant

of Rs.2 lakhs from the respondent. The respondent

communicated this demand to her parents but at the

relevant time, her father was facing financial crises,

so he could not fulfill the said illegal demand. The

father of the respondent tried to convince the

appellant and told that he would give money afterwards.

Due to such reason, ill-treatment was started to the

respondent. Physical and mental cruelty was caused to

her. So her father, by taking loan from others, paid

Rs.50,000/- to the appellant in presence of relatives.

Subsequently, the appellant husband and in-laws of the

respondent have demanded Rs.3 lakhs for purchase of

machinery and on that count again cruelty was caused

to her.

16. On 15th May, 2006, the respondent told the

appellant to take her to the hospital as she was

pregnant. That time, the appellant assaulted her with

kick and fists blow on her stomach. Her in-laws and

sister in-laws were instigating the appellant to do so.

FCA 13&14-16.odt So the respondent made a phone call to her father, then

her father along-with other relatives came there and

convinced the appellant and his family members.

17. On 13th September, 2016, the appellant insisted

the respondent to give consent for second marriage of

the appellant and on refusal to do so, the appellant

and his family members gave ill-treatment to her.

18. On 14th September, 2016, the appellant and his

family members took ornaments from the person of the

appellant. She was made to sit in a vehicle No. MH-20-

AG-2017 and was left at her parents' house and she was

warned that she should not return back. Due to the

aforesaid reason, the respondent is residing with her

parents. On 6th January,2007, the respondent was blessed

with one daughter. Due to the ill-treatment and the

illegal demands, the respondents approached to the

CIDCO Police Station and filed criminal complaints as

referred above.

19. Considering the rival contentions of the

respective parties, the learned Judge of the Family

Court framed issues in reference to the cruelty,

desertion, second marriage and entitlement to divorce

/judicial separation/restitution of conjugal rights.

FCA 13&14-16.odt

20. To establish the claim of restitution of

conjugal rights, the respondent filed affidavit under

the provisions of order 18 Rule 4 of the Civil

Procedure Code and has reiterated all the contents of

her petition under section 9 of the Act of 1955 and

her say filed in the divorce petition. Besides her oral

evidence, the respondent examined her father Laxman

Sonawane. As against this, the appellant has filed

affidavit under the provisions of Order 18 Rule 4 of

the Civil Procedure Code and has reiterated all the

contents of the divorce petition and the ground for

divorce mentioned therein. The appellant examined his

father Kashinath Dhakane. Besides the oral evidence of

both the parties, copies of criminal complaints/

applications are produced on record, from which it

reveals that various criminal proceedings between the

parties are pending before the Criminal Court.

21. Considering the oral as well as documentary

evidence on record, the Family Court has allowed the

petition of the respondent for restitution of conjugal

rights, whereas the petition of the appellant for

divorce/judicial separation is dismissed by its order

dated 18th August, 2014, against which the present

appeals are preferred by the appellant.

FCA 13&14-16.odt

22. We have heard Mr. A. S. Barlota, the learned

Advocate for the appellant and Mrs. Wankhede, the

learned counsel appearing for the respondent and gone

through the oral as well as documentary evidence on

record. Upon hearing both the parties, following points

arise for our determination:

       Sr.                           Points                       Findings
       No.




                                              
        1)     Whether the appellant is      ...                            No
               entitled for the divorce/ 
               judicial separation from the 
                               
               respondent on the ground of 
               cruelty and desertion ?
                              
        2) Whether  the respondent       ...                                Yes
           proves that the appellant 
           abandoned his society without 
           lawful excuse ?
      
   



        3)     What order ?                             ... Both the appeals 
                                                        are dismissed with 
                                                        no   order   as   to 
                                                        costs.





                                        R E A S O N S

are inter related, therefore, they are taken together

for discussion.

24. It is material to note that the appellant has

claimed divorce from the respondent on the ground of

cruelty and desertion as contemplated under section

FCA 13&14-16.odt 13(1)(i-a)and(i-b) of the Act, 1955 and the respondent

claimed restitution of conjugal rights under section 9

of the Act, 1955. The appellant as well as respondent

have led their oral evidence by way of filing affidavit

under Order 18 Rule 4 of the Civil Procedure Code and

they have reiterated their contentions in their

respective petitions. Therefore, it is necessary to

appreciate the evidence on record and whether the

appellant has established the ground of cruelty and

desertion.

25. At the outset, it is material to note that the

appellant has deposed that the respondent and her

family members were threatening him and were insulting

him. The respondent was saying that her father was in

the Police department and she will teach lesson.

Further, he deposed that the respondent filed criminal

complaint against the appellant and his family members

with false allegation in order to give harassment and

by this way, the respondent treated the appellant with

cruelty and therefore, on this count, he prayed for

divorce.

26. Perusal of the evidence on record, it appears

that various proceedings under the provisions of

FCA 13&14-16.odt Domestic violence Act, Indian Penal Code are pending

between the parties in the criminal court. Therefore,

at this stage, it is premature to say that the

proceedings filed by the respondent against the

appellant are false or frivolous. Such inference can

be drawn only after the conclusion of the criminal

proceedings pending before the Criminal Court.

Therefore, at this stage, it cannot be said that by

filing false complaint against the appellant, the

respondent treated the appellant with cruelty.

27. The word "cruelty" is not defined under the

Act, 1955. Concept "cruelty" is a willful and

unjustifiable conduct of such a character as to cause

danger to the life, limb or health, bodily or mental or

to give rise to reasonable apprehension of such

danger. The cruelty contemplated under section 13(1)

(i-a) of the Act, 1955 is conduct of such a type that

the appellant cannot reasonably be expected to live

with the respondent. It has to be of a type which

would satisfy the conscience of the court that the

relationship between the parties had deteriorated to

such an extent that due to conduct of the other spouse

it has become impossible for them to live together,

without mental agony, torture or distress.

FCA 13&14-16.odt

28. "Cruelty" has been used in relation to human

conduct or human behaviour. Cruelty may be mental or

physical, intentional or unintentional. If it is

physical, the court will have no problem to determine

it. It is a question of fact and degree. If it is

mental, the problem presents difficulty. First, enquiry

must begin as to the nature of the cruel treatment.

Second, the impact of such treatment on the mind of

the spouse. Whether it caused reasonable apprehension

that it would be harmful or injurious to live with the

other. Ultimately, it is a matter of inference to be

drawn by taking into account the nature of the conduct

and its effect on the complaining spouse.

29. The ground of cruelty contended by the appellant

is that the respondent has filed three criminal

complaints against himself and his family members.

Father of the respondent also filed a false complaint

against him. As a matter of record, these complaints

are pending before the concerned courts for its

adjudication. The appellant has alleged that filing of

such false complaints against him and his family

members amounts to mental cruelty to them. It is

difficult to accept such contention and argument of

the appellant, because, all these proceedings are

FCA 13&14-16.odt pending and are not decided finally. Therefore, at

this stage, it cannot be said that all these

proceedings are false and frivolous. Therefore, the

ground of cruelty based upon such pleadings and

evidence on record is unacceptable.

30. The second ground complained is of desertion

under section 13(1)(i-b) of the Act, 1955. It is argued

on behalf of the appellant that respondent has deserted

the appellant and abandoned his society without any

reasonable cause for more than two years preceding to

the institution of the petitions and therefore, the

appellant is entitled to have divorce from the

respondent.

31. The appellant deposed that after the marriage,

the respondent resided with him for about 8 to 9

months. In the month of September, 2006, the

respondent went to her parents' house by taking

ornament, clothes and household articles with her

brother on motorcycle. Thereafter, the appellant, his

family members and other respectable persons from the

society have tried to bring the respondent to the house

of the appellant, however, the respondent refused and

parents of the respondent also refused to send the

FCA 13&14-16.odt respondent and thereby they have showed their intention

to breakdown the marriage permanently.

32. Subsequently, the appellant has sent a notice to

the respondent on 19.06.2007 for restitution of

conjugal rights. Such notice was received by the

respondent, however, she did not reply the same nor

came for cohabitation.

33. During the cross examination, the appellant has

admitted that on 14.09.2006, the respondent went with

her brother on a motorcycle. Looking to the above

admission, it appears that it would be impossible for

the respondent to go with her brother on a motorcycle

along-with clothes and household articles, as alleged

by the appellant. As against this, it is contended and

deposed by the respondent that on 14.09.2006, she was

made to sit in a vehicle and she was sent to her

parents' house at Padegaon. Evidence of the respondent

to that effect is more particular in reference to the

date, time and the manner in which the appellant drove

away the respondent from his house. As against this,

the oral evidence of the appellant to that effect is

very vague and unbelievable.

34. To consider the bonafides on the part of the

FCA 13&14-16.odt appellant as well as respondent, it is material to note

that the appellant came with the case that respondent

herself abandoned the society of the appellant. He

tried to bring her back, but the respondent refused.

Such pleading and evidence of the appellant appears to

be false, because, the appellant has admitted in clear

words that after 14.09.2006, he did not went to bring

his wife back. Even it is seen from the evidence on

record that the appellant and his father have shown

their ignorance about the fact of pregnancy of the

respondent. It is an admitted fact that the respondent

gave birth to a female child on 06.01.2007. On this

background, conduct of the respondent and his father

appears to be most irresponsible as even they do not

know or remember the fact of pregnancy of the

respondent. During the cross examination, the appellant

has further admitted that he never went to bring the

respondent after 14.09.2006 nor he went to see his

daughter.

35. On perusal of contents of the notice,

particularly, in para 2 of the notice it is mentioned

that on 16.07.2005, when the respondent was with

appellant, she met with an accident and sustained head

injury and injury to her back, due to which she is

FCA 13&14-16.odt unable to have sexual intercourse. Since then there was

no sexual relationship between the respondent and the

appellant.

36. Though it is mentioned by the appellant in his

notice that due to the injuries caused to the

respondent she is unable to perform sexual intercourse,

such contention and pleading is not taken by the

appellant in his petition. The notice issued by the

appellant seems to be for the restitution of conjugal

rights but the appellant has not filed a petition for

restitution of conjugal rights. On the contrary, he

turned around and filed a petition for divorce.

Therefore, from the contents of the notice,

particularly in para 2, intention of the appellant is

very clear that basically he does not want to reside

with the respondent. We think that notice with such

allegation is sent to create one of the grounds for

divorce, because it is mentioned in the notice that

the respondent abandoned the society of the appellant

without any reasonable cause. The evidence on record

shows that in fact, the appellant had drove away the

respondent from his house and therefore the respondent

is constrained to live with her parents.

FCA 13&14-16.odt

37. To test the bonafides of the parties, it is

material to note that the respondent was ever ready to

reside with the appellant and this fact is very clear

from certain admissions given by the appellant and his

father during cross examination. The respondent has

admitted that during the pendency of the petition, the

matter was referred for conciliation for 5 to 7 times.

Further, the father of the appellant has also admitted

in the cross examination that when the proceedings

under the Domestic Violence Act were initiated in the

year 2007, decided in 2008, during that period the

matter went for conciliation for three times. The

proceedings under the Domestic Violence Act were decided

by the Court in the year 2012. During conciliation

proceedings, the respondent had shown willingness to go

with the appellant but the respondent took her at his

married sister's house and not to his house.

38. From the above admissions, it is very much clear

that the appellant or his parents never tried to bring

the respondent to their home. On the contrary, the

respondent was ever ready to reside with the appellant.

There is no reason for the respondent to abandon the

society of the appellant nor there is evidence on

record to that effect.

FCA 13&14-16.odt

39. Mr. Barlota, the learned counsel appearing for

the appellant has argued that the evidence on record

is sufficient to hold that respondent treated the

appellant with cruelty and therefore has relied on the

observation of the Apex court in the case of V. Bhagat

Vs. D. Bhagat (Mrs), reported in 1994 AIR (SC) 710 in

which it is observed that-

"Mental cruelty is that conduct which inflicts upon the other party such mental pain and suffering

as would make it not possible for that party to live with the other-- when the circumstances are

such that there is irretrievable breakdown of the marriage, the marriage between the parties must be dissolved."

40. The observation of the above cited authority is

inapplicable to the facts of the present case because,

basically, the appellant failed to establish that the

respondent treated the appellant or his family members

with cruelty.

41. Mr. Barlota further relied on the observations

of the Division Bench of Madhya Pradesh High Court in

the case of Basudev Jata Vs. Smt. Rekha Jata, reported

in AIR 2015 Madhya Pradesh 176. We have gone through

the facts and observations of the said authority, from

FCA 13&14-16.odt which, it appears that the wife left the matrimonial

house and husband lodged a report to that effect. On

the other hand, the wife had not reported against her

husband but stayed with her parents and never bothered

to go to her husband. The facts and observations

of the above cited authority are altogether different.

42. As against this, Mrs. Wankhede, the learned counsel

appearing for the respondent has relied on the

observations in the case of the Apex Court in the case

of Jagdish Singh Vs. Madhuri Devi, reported in 2008

DGLS(Soft.)618, in which it is observed that -

"33. Three requisites should normally be

present before an appellate court reverses

a finding of the trial court;

              (i)           it   applies     its     mind   to   reasons 





              given by the trial court;

              (ii)          it   has   no   advantage   or   seeing   and 
              hearing the witnesses; and





              (iii)         it   records   cogent   and   convincing

reasons for disagreeing with the trial court."

43. Mrs. Wankhede, the learned counsel for the

respondent further relied on the decision of the Apex

Court in the case of Darshan Gupta Vs. Radhika Gupta,

FCA 13&14-16.odt reported in 2013 (4) Bom.C.R. 706, which reads thus:

"The party seeking divorce under the "Matrimonial

offence theory"/the "fault theory" must be innocent. A party suffering "guilt" or "fault" dis-

entitles himself/herself from consideration. Illustratively, desertion for a specified continuous period, is one of the grounds for

annulment of marriage. But the aforesaid ground for annulment is available only, if the desertion is on account of the fault of the opposite party,

and not fault of the party which has approached the

Court. Therefore, if a husband's act of cruelty, compels a wife to leave her matrimonial home,

whereupon, she remains away from the husband for the stipulated duration, it would not be open to a husband to seek dissolution of marriage, on the

ground of desertion. The reason being, that it is

the husband himself who was at fault, and not the wife."