Bombay High Court
Suchita Shailesh Fulsunge vs Shailesh Harishchandra Fulsunge on 7 July, 2016
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.209 OF 2007
WITH
CIVIL APPLICATION NO. 52 OF 2014
AND
CIVIL APPLICATION NO.270 OF 2015
A ] .. Appellant
Versus
B ] .. Respondent
ig ......
Ms.Kokila Kalra, Advocate for the Appellant.
Mr. Sasidharan Nair, Advocate for Respondent.
......
CORAM : A.S. OKA AND P.D. NAIK, JJ.
RESERVED ON : APRIL 14, 2016
PRONOUNCED ON : JULY 7, 2016
JUDGMENT (Per P.D. Naik, J.) :
Considering the controversy in the Appeal, we have
mashed the names of the parties and witnesses. The
appellant/wife has challenged the impugned judgment and order
dated 12th September, 2007 passed by the Family Court No.2,
Mumbai in Petition No.A-1371 of 2002. The said petition was
preferred by the respondent - husband seeking decree of divorce
under clauses (ia) and (ib) of Section 13(1) of the Hindu Marriage
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Act, 1955 read with Section 26 of the Hindu Marriage Act, 1955
and Section 7(1) of the Family Court Act, 1984.
2 The aforesaid petition preferred by the respondent -
husband was partly allowed. The marriage solemnized on 15 th
February, 1998 between the appellant (wife) and the respondent
(husband) herein was dissolved by a decree of divorce. The
Family Court further passed an order rejecting the prayer of the
respondent - husband for custody of the child. The Family Court
also directed the husband to pay Rs.4,000/- per month to the wife
and Rs.3,000/- per month to the minor son towards their
permanent maintenance payable from the date of the order. The
claim of the Stridhan was however rejected. The said judgment
and order dated 12th September, 2007 passed by the Family Court
No.2, Mumbai is under challenge in this Appeal as stated
hereinabove.
3 The brief facts as narrated in the divorce petition
filed by the respondent - husband seeking divorce are as follows:
(a) The marriage between the parties was solemnized on 15 th
February, 1998 at Dadar, Mumbai in accordance with Hindu
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vedic rites and religious. One issue was born out of the
said wedlock on 14th January, 1999 namely Shlok alias
Vedant.
(b) The parties cohabited together at Vasai, District - Thane till
30th January, 2000. The respondent husband noticed that
the wife was aloof not only with him but also with the other
family members. The appellant - wife was non-cooperative
and remained away from cordial relationship with the
respondent - husband as well as with his family members.
The appellant - wife never showed any interest towards the
relatives of the respondent - husband. She always thought
very high about herself and her maternal family because
she was from political background.
(c) The respondent - husband had disclosed every fact and his
responsibilities towards his family members to the
appellant - wife at the time of marriage. It was pointed out
that the husband being the male person, he has to maintain
his handicapped father, mother and three unmarried
sisters. It was further stated that the respondent -
husband always tried to convince the wife about her duties
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towards his family members. It was further stated that the
wife failed to realize her duties and deprived the husband
and his family members from enjoying normal peaceful life
by insulting them in front of her maternal family members
more specifically her brother namely "S".
(d) The wife showed her true colours and started harassing the
husband for the reasons best know to her and without any
fault of his or his family members.
ig She wanted to live
separately and, therefore, went on making complaints
against each of the family members of the husband. She
was very adamant and was of demanding nature. She used
to pick up unnecessary fights. She was repeatedly visiting
her parental home and she never stayed continuously in her
matrimonial house for more than two weeks. She also
avoided her responsibilities and duties as a daughter-in-law
and wife and towards the relatives of the husband. On 10 th
November, 1998 the appellant - wife left the matrimonial
home by informing that she would return in case the
husband arrange a separate residence. She also threatened
that in case the husband failed to do so, they will have to
face dire consequences.
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(e) The wife gave birth to a male child on 14 th January, 1999.
The husband immediately rushed to the hospital to see the
new born child and to share the joy, but the wife and her
family members restrained him from seeing the newly born
child and told him that he should live separate from the
family members. After long persuasion by the husband, the
appellant wife he was allowed to take the child for 10 to 15
minutes and thereafter was forcibly driven out from the
hospital.
(f) The respondent tried his level best to convince the wife that
he cannot reside separately and there is no one other than
him to support his family. However, the wife insisted upon a
separate residence. Whenever the husband tried his level
best to avail the access to meet the child at the parental
place of the wife, he was denied the same. The wife also
succeeded in threating and using the muscle power of her
family members who are connected with the underworld.
The mother-in-law of the husband threatened him that he
should take a separate flat otherwise she would compel his
sisters to lead a life of prostitute. The husband anticipated
danger to his life and the life of the family members and
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under the pressure arranged a separate flat on rental basis
and started residing there from September 1999 till 30 th
January 2000. However, the things did not change. The
wife did not allow the family members of the husband to
have access to the child. The wife use to give calls to her
parents making false complaints against the husband and
his family members.
(g) On 29th January, 2000 the father of the husband was
attending a meeting of their community at Parel, Mumbai.
At that time about 10 to 12 gangsters entered the premises
and compelled the respondent's father to come out of the
said premises. They started threatening him and forced
him to meet one Dileep Kulkarni from Dagadi Chawl on 30 th
January, 2000. They also threatened that they would spoil
the life of the married sisters of the husband. The father of
the respondent - husband and other family members had
undergone extreme mental and physical trauma at the
hands of the wife and her family members. The husband's
father was compelled to visit Dagadi Chawl to meet the
persons referred to hereinabove. However, instead of the
person named hereinabove, the uncle of the appellant's
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wife was waiting for the father of the husband. He was
taken to a dark room and was abused, assaulted and
threatened. The brothers of the appellant - wife were also
present at the time of the said incident.
(h) The conduct of the wife and her family members had
adverse effect on the mental condition of the husband and
his family members. The wife also lodged a false complaint
under Section 498-A of the Indian Penal Code against the
husband and his family members. The conduct of the wife
was very cruel and amounted to mental and physical
cruelty. The relatives of respondent wife having
connections with the underworld/gangsters did not spare
the married sisters of the husband who were required to
leave their house. On account of the said threats and on
apprehending danger to their life, the husband and his
family members were compelled to leave their residence.
The threat perception was such that they required to leave
the State for safety reason. On the basis of several
grounds which includ the aforesaid factual aspects, the
husband sought a decree of divorce by preferring the
aforesaid petition. The said petition was preferred on 27 th
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September 2002. The husband had also prayed for custody
of the child.
4 The appellant wife countered the grounds raised in
the petition for divorce by filing the written statement in the said
proceedings. She denied the allegations made therein. In the
written statement, the wife had contended that the allegations
made against her are false and the same is made with an
intention to malign the appellant wife and her family members.
She stated that during her pregnancy nobody in the family
members of her husband cared for her. They did not come to
meet the appellant wife and the new born child except once the
husband had visited the hospital on the next date of her delivery.
They did not attend the naming ceremony of the son. She further
stated that the husband never wanted her to join the matrimonial
home as she was considered as an additional burden in the
family. She denied all the allegations made in the divorce petition
in toto. She further stated that on account of the harassment and
demand for money, the appellant wife filed the complaints with
the authorities. She also denied having any connection with the
underworld/gangsters. She also referred to the financial status of
the respondent husband.
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5 The Family Court vide order dated 7th March, 2006
was pleased to frame the following issues :
1. Does petitioner prove that the respondent treated
him with cruelty ?
2. Does petitioner prove that the respondent has
deserted him for a continuous period of more than
two years immediately preceding the presentation of
the petition ?
3. Whether the petitioner is entitled for decree of
divorce as prayed for ?
4. Is petitioner entitled to permanent injunction
restraining the respondent and/or her relatives
and/or her agents and/or servants from entering the
premises situated at "Sneh Apartment", 8/3, Dhuri
Complex, Omnagar, Vasai (West), Thane and within
the vicinity of petitioner's serving place ?
5. Whether the petitioner or the respondent is entitled
to have permanent custody of the minor son Shlok @
Vedant ?
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6. Is respondent entitled to claim permanent
maintenance from the petitioner for herself and the
minor son ? If yes, at what rate ?
7. Is respondent entitled to return of her personal
belongings, valuables and ornaments lying in the
matrimonial house ?
8. What order and costs ?
6 The respondent husband examined himself in support
of his petition. He also examined his sister "P1" and "P2" as
witnesses in support of his petition. He also filed affidavit of
examination-in-chief of P3. But he did not entered the witness
box. The appellant wife examined herself as well as her mother
R1 and R2 in support of her defence.
7 The Family Court, as stated above, proceeded to
allow the petition partly. The marriage of the petitioner and
respondent was dissolved by a decree of divorce. However, the
prayer for custody of the child was rejected. The wife thereby
preferred the present Appeal. She has also filed Civil Application
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No.52 of 2014 in this proceedings seeking direction to pay the
arrears of maintenance. She also preferred Civil Application
No.270 of 2015, seeking enhancement of the maintenance to her
and the minor son. She has also prayed for permanent
accommodation.
8 The Family Court on consideration of the evidence
addressed by the parties answered the issues framed in the said
proceedings as follows:
ISSUES FINDINGS
1 Does petitioner prove that the respondent In the
Affirmative
treated him with cruelty ?
2 Does petitioner prove that the respondent In the
Affirmative
has deserted him for a continuous period of
more than two years immediately preceding
the presentation of the petition ?
3 Whether the petitioner is entitled for In the
Affirmative
decree of divorce as prayed for ?
4 Is petitioner entitled to permanent In the Negative
injunction restraining the respondent
and/or her relatives and/or her agents
and/or servants from entering the premises
situated at "Sneh Apartment", 8/3, Dhuri
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Complex, Omnagar, Vasai (West), Thane and
within the vicinity of petitioner's serving
place ?
5 Whether the petitioner or the respondent is In the Negative
entitled to have permanent custody of the
minor son Shlok @ Vedant ?
6 Is respondent entitled to claim permanent Yes @
Rs.4,000/- to her
maintenance from the petitioner for herself and @
Rs.3,000/- to
and the minor son ? If yes, at what rate ? child
personal
Is respondent entitled to return of her
belongings, valuables and
In the Negative
ornaments lying in the matrimonial house ?
8 W What order and costs ? As per final
order
9 It was not disputed that the marriage was performed
on 15th February, 1998 at Mumbai as per Hindu Vedic rites and
customs. It is also not disputed that after the marriage the
parties cohabited at Vasai, District - Thane and a child was born
out of the said wedlock on 14 th January, 1999. It is not in dispute
that till January 2000 they resided together.
10 The Family Court after considering the evidence
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brought on record recorded a conclusion that the husband was
subjected to cruelty and has succeeded in making out the ground
for divorce. While coming to the said conclusion, the Family
Court had made the following observations:
(a) Though it was argued at the instance of the respondent -
wife that the husband had performed the marriage on
account of her political connection, in the cross-
examination the wife has admitted that the husband never
took any benefit of her political relations and, therefore,
there is no substance in the said submission.
(b) It was submitted at the instance of the wife that the
husband wanted to go abroad and, therefore, he was in
need of Rs.2.25 and her brother had paid an amount of
Rs.2.5 lac to him. The husband has denied of demanding
any such money or any payment is being made to him.
However, he admitted in his cross-examination that he had
forwarded a letter to the brother of the respondent - wife
which is at Exhibit - 58. On perusal of the letter it can be
said that there is no reference in the said letter about any
demand of money being made by the husband.
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(c) If for a while it is considered that the brother of the wife
had paid the amount as alleged to the husband, then
certainly she would have placed reliance upon some
documents to support the said contention. The wife has not
examined her brother before the Court to show that the
amount of Rs.2.5 lac was paid to him to the husband. She
did not file any documents to show that such an amount
was parted to the husband. Therefore, it is difficult to come
to the conclusion that the brother of the wife has paid an
amount of Rs.2.5 lac to the husband.
(d) The wife had examined her friend Rajani before the Court
to bring on record that on 15th January, 1999 when she was
in the hospital, the husband came and wanted to take the
child along with him. The husband has denied the said fact.
If actually such an incident had occurred then certainly the
same would have been pleaded in the written statement
filed by the wife. However, the said witness stated before
the Court for the first time. It is difficult to come to the
conclusion that any father will take away newly born child
from the hospital and, therefore, the statement of the wife
has no force.
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(e) It was submitted at the instance of the wife that it was
decided when her brother gave money to the husband that
he would arrange a separate room and, therefore, the
brother had arranged a flat for them and they started living
together in the said flat. However, according to the
husband he himself arranged the flat near her parents'
house and they started residing there. In the cross-
examination the wife has admitted that the husband had
arranged the flat on rental basis and he was paying the
rent. She had no knowledge as to how much deposit was
given for the said rented flat. If any amount is paid by her
brother, then she would certainly had a knowledge of the
deposit as to how much amount her brother had paid and,
therefore, there is no substance in the contentions of the
respondent - wife.
(f) The petitioner husband has examined his sister Sushma
vide Exhibit - 65 before the Court who has duly supported
the version of the petitioner husband about the behaviour
of the respondent wife and her quarrelsome nature.
The said witness has stated that in September 1999 they
started residing at Vasai and as her father was assaulted,
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they shifted to Hyderabad. She further stated that in
October 2000, the wife traced out her at Malad and in
February 2001 she lodged the complaint under Section
498-A of the Indian Penal Code.
(g) The petitioner husband has also examined his cousin P2
vide Exhibit-66 with a view to support his evidence and
also to bring on record the threats given by the relatives of
the wife to them.
(h) It was submitted at the instance of the respondent wife that
in the year 2001 they had visited Tuljapur, but, in her
cross-examination the wife has admitted that the husband
was absconding for one year and after January 2000 they
were separated from each other. Thus, there is no reason
for the respondent to go with the wife to Tuljapur in the
year 2001.
(i) The respondent wife examined her mother vide Exhibit - 79
who has stated that from time to time money was given to
the petitioner/husband and it was to the tune of Rs.5 lac.
However, no document is filed on record to show that the
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money was given to the husband from time to time and,
therefore, it is difficult to come to the conclusion that the
husband was ill-treated her on account of money. Both the
parties were making allegations against each other on the
issue of cruelty. The wife has filed several cases against the
husband. The husband has also lodged complaints to the
police. The wife has failed to prove before the Court that
the husband used to ill-treat her and demanded money. She
had admitted in her cross-examination that "AG" is her
maternal uncle and, therefore, she has relations with the
political persons. Such a lady would not keep mum if there
is any ill-treatment or there was demand of money.
(j) The husband and wife residing separately since last more
than 6 to 7 years. Both of them are making allegations
against each other. According to the husband, the wife has
ill-treated him. According to him, she was not willing to
give divorce to him. It was submitted at the instance of the
husband that the behaviour of the wife has caused great
mental torture to him. It was submitted that whenever she
used to quarrel with the husband, the wife used to go to
her parents house. She has not disputed that she resided
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with him for 17 days after the marriage in the matrimonial
home. The filling of the false complaint with the police
amounts to mental cruelty. Although they were resided
separately from the joint family, she lodged the complaint.
She has not filed any documents on record to show that the
husband and his family members threatened her and,
therefore, the husband has proved that the respondent wife
has treated him with cruelty and, therefore, issue no.1 was
answered in the affirmative.
(k) So far as the issue no.1 of desertion is concerned, it can be
said that the parties are living separately since last more
than two years from the institution of the petition, the
petitioner husband has to prove that the wife has deserted
him with an intention to bring the cohabitation to an end
permanently. At the same time the respondent has to prove
that she was not the consenting party and she was
compelled to leave the matrimonial house. According to
the respondent, on 30th January, 2000 she was assaulted by
the petitioner and according to the petitioner husband
when his father was assaulted in Dagadi Chawl, the father
informed him to leave the house immediately and,
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therefore, they left the house and went to Hyderabad.
If the respondent wife wanted to cohabit with the husband
then certainly she would have made efforts to cohabit with
him. However, she lodged a complaint with the police
against the respondent and his family members and they
were arrested by the police. Therefore, it can be said that
it is the respondent wife who has deserted the petitioner
husband and, therefore, issue no.2 answered in the
affirmative.
(l) So far as the custody of the child "V" is concerned, it is not
disputed that the parties hardly resided together after the
birth of the child. According to the respondent wife, the
child does not recognize the petitioner husband as his
father. The husband had moved an application in the year
2005 for access which was refused. If the petitioner
husband had love and affection towards the child then
certainly he would have claim the custody or would have
keep mum for a long period of time. The respondent wife
is taking due care of the child. She is a better position to
look after the child. The child needs the love of the mother.
It is the mother who can understand the emotions of the
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child and not the father. The child is attached to her
mother and since last more than seven years the child is
residing with her. In the circumstances, it can be said that
the petitioner husband is not entitled to have the custody
of the child.
(m) As far as the minor child is concerned, it is the duty of the
father to look after the minor child and, therefore, the child
is entitled for the maintenance. The flat Sneh Apartment
was recorded in the joint name of the petitioner husband
and his parents. He admitted that he has purchased the flat
in different locality in Vasai exclusively in his name in the
year 2005. On perusal of the income of the husband, it can
be seen that the wife is entitled for a maintenance of
Rs.4,000/- per month.
(n) The claim of the respondent wife for Stridhan is rejected.
It is not disputed that till January 2000 they resided in the
rented flat and since 30th January, 2000 they started
residing separately. It was submitted by the petitioner
husband that police has taken search of his home but no
Stridhan was found. It can be seen that the respondent
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wife lastly left the house and did not return after 30 th
January, 2000 and, therefore, it is difficult to come to the
conclusion that all the articles are in the custody of the
petitioner husband.
(o) The petitioner husband has prayed for restraining the
respondent wife and/or her relatives and/or her agents or
servants from entering the premises situated at "Sneh
Apartment" 8/3, Dhuri Complex, Omnagar, Vasai (West),
Thane. It is the matrimonial home of the respondent wife
and she cannot be restrained to enter the said premises
and, therefore, the respondent husband has not allowed to
have injunction restricting the wife from entering the said
premises.
11 The learned counsel for the appellant wife in support
of the present Appeal has reiterated the submissions made before
the trial Court. It is submitted that the trial Court has failed to
take into consideration the evidence on record in proper
prospective. It is submitted that the petitioner husband therein
had not proved the case of either physical or mental cruelty. It is
further submitted that the evidence put forth by the petitioner
husband before the Family Court is not sufficient to bring the
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case within the purview of cruelty as required by law for granting
divorce on the said ground. It is further submitted that the
petitioner has also failed to establish his case that the respondent
wife has deserted him. It was submitted that on the contrary the
petitioner husband treated her with physical and mental cruelty.
The husband has caused harassment amounting to cruelty. The
husband used to demand money from time to time. Since the
demands were not fulfilled, the wife was assaulted from time to
time. It is further submitted that it is the husband who has
disappeared leaving behind the respondent wife and the minor
child and in fact had deserted her. It is submitted that although
the respondent wife was subjected to cruelty and desertion, the
learned Family Court has given the findings otherwise. It is
submitted that the witnesses examined by the petitioner husband
had failed to establish the case. It is submitted that in the cross-
examination of the said witness who are examined in support of
the petition, the respondent wife has succeeded in formulating
the contention of the petitioner. It is further submitted that the
oral evidence of the witnesses examined by the petitioner is not
supported by any documentary evidence. In fact, the respondent
wife has made complaints to the police station against the
petitioner and his family members which supports the stand of
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the respondent wife that she was ill-treated at the instance of the
petitioner husband and his family members. It is submitted that
the conclusions arrived at by the learned Family Court are
contrary to law. It is also submitted that the findings of the trial
Court are unsupported by any evidence and, in fact, the evidence
on record is contrary to the said findings. It is submitted that the
incident as alleged by the petitioner husband does not amount to
acts of cruelty. It is submitted that the submissions of the
petitioner husband are afterthought and which are not supported
by any concrete evidence. The learned counsel for the husband
supported the impugned judgment.
12 We have perused the evidence on record. The
petitioner has examined himself and other witnesses in support
of his petition. It can be seen that the petitioner has been able to
establish his case of cruelty and desertion in support of his
petition. For the reasons we are recording, we do not find any
reason to interfere with the findings of the Family Court. It can
be seen that the Family Court has passed a well reasoned order
which is supported by the evidence on record. The evidence of
the petitioner husband and the evidence of his sisters clearly
establish that the respondent wife had caused cruelty to the
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husband. It is brought on record that the respondent wife had
political connections and that her relations were connected to
underworld. The petitioner has succeeded in proving that they
were living under constant fear. The petitioner has pointed out
that his father was forced to visit Dagali Chawl wherein he was
threatened of dire consequences, and was abused as well as
assaulted. The petitioner has proved that on account of danger to
their life, they were required to shift their residence from the
State of Maharashtra and, therefore, had to settle down at
Hyderabad. This fact clearly establishes that they were
continuously under fear. The reasons given by the Family Court
is well founded. We agree with the findings recorded by the
Family Court. On the contrary, the evidence put forth by the
respondent wife in support of her case does not affect the case of
the petitioner/husband. The claim of the respondent wife that
the petitioner had demanded the amount of money from time to
time has not been established. The Family Court has rightly
rejected the said claim on the ground that there is no
documentary evidence to support the same. The Family Court
has also categorically observed that the respondent wife has not
examined her brother who had purportedly parted with the
amount of Rs.2.5 lac to the petitioner husband. Therefore, the
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Court could have been justified in drawing an adverse inference
for keeping back the witness though available. It is also rightly
observed by the Family Court that the mother of the respondent
wife who has been examined in support of her, has orally stated
that the amount parted to the petitioner husband was to the tune
of Rs.5 lac. However, she has not produced any evidence in
support of the said contention. It is also observed by the Family
Court that on account of the threats to the life of the petitioner
husband and his family members they were required to leave the
State of Maharashtra and shift to another State. It is also
observed that the respondent wife had not made any efforts to
cohabit to the petitioner husband. We also find that the order
with regard to the issue of the custody of the child as well as the
for injunction in relation to the premises is well founded. In any
case, the respondent husband has not challenged the same
before this Court.
13 The respondent husband had examined himself by
filling the affidavit in lieu of examination-in-chief before the
Family Court. He had brought on record all the instances which
according to him amounts to cruelty. The said witness was cross-
examined at the instance of the wife. However, we find that his
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evidence is not at all shaken in cross-examination. The petitioner
husband then examined P1. On perusal of her evidence, it can be
seen that she has brought on record various instances showing
the fear under which the family was surviving. She has clearly
supported the evidence of the petitioner husband. She has
deposed that there was danger to their life and after their father
was assaulted, they left the State and shifted at Hyderabad. She
further deposed that on account of the highhandedness of the
respondent wife they had to undergo sleepless nights in the fear
of danger to their lives. When she came back to Mumbai in
October 2000, the respondent wife and her people traced her out
at Malad and, thereafter a complaint under Section 498-A of the
Indian Penal Code was lodged against all of them. She was
arrested along with her husband and were kept in police custody.
She further deposed that the brutal conduct on the part of the
respondent wife and his family members made adverse effect on
every family members and each family member was acting under
extreme mental and physical tension. She also stated that the
respondent wife had troubled the other sister and brother-in-law
who was residing at Mysore and in that regard a complaint was
lodged by her brother-in-law against the respondent wife. The
said witness was cross-examined at the instance of respondent
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wife. In the cross-examination the respondent had brought one
vital fact on record which is in paragraph 18 of her evidence. It
has come on record that one report was lodged by the mother of
the said witness against the respondent wife with Vasai police
station. The petitioner husband then examined P2 in support of
his petition. The said witness was acquainted with the family of
the petitioner husband being a close relative. She has reiterated
the conduct of the respondent wife. She had stated that her
family was continuously tortured to find out the whereabouts of
the petitioner husband and his family members. She has also
stated that her brother was assaulted at the instances of the
family of the respondent wife. It was also stated that they had
lodged complaint with the police on account of the said
harassment. She was cross-examined at the instance of the
respondent wife. In paragraph 11 of the cross-examination, it
was brought on record that the said witness and her mother had
lodged the reports with the police against the respondent
therein. The petitioner thereafter had filed an affidavit of P3 in
support of his petition. However, the evidence of the said witness
had been rightly discarded by the Family Court as the witness
was not available for the cross-examination.
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14 The respondent wife had examined herself by filling
affidavit of evidence. She has given instances of ill-treatment
purportedly meted out to her at the instance of the petitioner
husband. She had denied the allegations made against her by
the husband. She was cross-examined at the instance of the
petitioner husband. In her cross-examination in paragraph 33
the respondent wife has stated that AG is her maternal uncle.
However, the petitioner husband has not taken any advantage of
this relationship. In paragraph 34 she deposed that she had
never made any complaint against the petitioner husband to the
Railway Authorities. However, she was shown Exhibit - 78 which
is a letter written by her to the Central Railway CST Mumbai
with respect to the complaint against the petitioner husband. She
admitted the said document being written by her. In paragraph
36 of her evidence, she has stated that the petitioner husband
started demanding money from her. The amount was paid in cash
and therefore she does not have any documentary evidence. She
lodged the complaint with the police with respect to such
demand of money. She stated that her brother S paid the amount
as demanded by the petitioner husband. However, she stated that
she do not have any documentary evidence of the payment. In
paragraph 39 she stated that the letter at Exhibit - 58 was
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written by the petitioner husband to her brother S and the same
was handed over to her by the brother. The said letter infact did
not contain any demand of money for the purpose of migration to
New Zealand. In paragraph 40, she stated that one UD was the
owner of the flat which was taken on rent for their residence.
For the period of about three or three and half months she stayed
along with the child at the said premises. However, she stated
that she was not aware as to about what was the amount of the
deposit for the said flat. She admitted that she does not have any
document to support her submission that the flat was taken on
rent and that the amount of rent was paid by her brother. She
further admitted in paragraph 44 of her cross-examination that
after the marriage she was appointed as S.E.O. Today also she is
the S.E.O. After the marriage she joined the political activities.
She was Vice president of N.C.P. at Chinchpokali. Today also she
is working on the said post. In paragraph 45, it was deposed that
the petitioner was absconding about a year after 5 th April, 2000
and, she had no contact with him. Therefore, he came back and
was on visiting terms with her. The incidents after he come back
amount to cruelty according to her. In March 2002 she lodged a
report in the police station against the petitioner husband and
her sisters. The petitioner was arrested before 2002 by Vasai
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Police under Section 498-A of the IPC. In paragraph 51, the
witness has admitted that she has not filed any document on
record to show that she and her mother has given money to the
petitioner husband for investment in C.U. Marketing Company.
15 The respondent wife further examined her mother R1.
She deposed about payment of Rs.2,50,000/- to the petitioner
husband in the year 1999 as he had sent a letter to her son S.
In cross-examination she stated that she is not having any
document to show that she gave an amount of more than Rs.5
lac to the petitioner. The respondent also examined friend R2
who deposed about the incident which had occurred allegedly
after the birth of the son. She stated that the petitioner husband
picked up the child when he visited the hospital after the
delivery. She further stated that she restrained him from doing
so. However, in cross-examination she admitted that she has not
narrated the incident in the hospital. She also admitted that the
respondent has not lodged any complaint. It is also pertinent to
note that the said incident is not reflected in the written
statement filed by the respondent wife.
16 On perusal of the aforesaid evidence, it is Crystal
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clear that the petitioner has established the ground of cruelty as
well as desertion in support of his petition for divorce. It is also
required to be noted that in the cross-examination of the
petitioner and his witnesses, certain facts are brought on record
at the instance of the respondent which also supports the claim
of the petitioner husband. We are satisfied from the evidence on
record as referred hereinabove that the Family Court has rightly
accepted the claim of the petitioner and has dissolved the
marriage by passing a decree of divorce.
ig We do not find any
reason to take a contrary view.
17 In several decisions of the Hon'ble Apex Court as well
as this Court, the term cruelty has been defined and has been
explained. On perusal of the evidence, it is apparent that the
incident brought on record by the respondent/husband amounts
to an act of physical and mental cruelty within the meaning of
law. In the case of V. Bhagat Vs. D. Bhagat1, the Apex Court
observed that the mental cruelty in Section 13(1)(i-a) can
broadly be defined as 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. Mental cruelty must
1 (1994) 1 SCC 337
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be of such a nature that the parties cannot reasonably be
expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put up with such
conduct and continue to live with the other party. In the case of
Savitri Pandy Vs. Prem Chandra Pandey 2, the Apex Court has
made observation on the issue of "Desertion". It is observed that
"Desertion" for the purpose of seeking divorce under the Act,
means the intentional permanent forsaking and abandonment of
one spouse by the other without other's consent and without
reasonable cause. Desertion means withdrawal from the
matrimonial obligations i.e. not permitting or allowing and
facilitating the cohabitation between the parties. In the case of
K. Srinivas Rao Vs. D.A. Deepa 3, the Apex Court has observed
that where marriage is beyond repair on account of bitterness
created by acts of either of the spouses or of both, Courts have
always taken irretrievable breakdown of marriage as a very
weighty circumstance amongst others necessitating severance of
marital tie. A marriage which is dead for all purposes cannot be
revived, if the parties are not willing. This is because marriage
involves human sentiments and emotions and if they have dried
up, there is hardly any chance of their springing back to life on
2 (2002) 2 SCC 73
3 AIR 2013 SC 2176
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account of artificial reunion created by Court decree. In the
present case, the husband and his family members were
harassed. They were threatened, abused and assaulted. They
were continuously under the threat of danger to their life and
were required to leave the city and settle down at Hyderabad. It
is also stated that attempts were made to trace them and even
harassment was caused to the other acquaintance of the husband
to find out whereabouts of his family members. It is, therefore,
clear that the incident amounts to cruelty and, hence, the
husband was entitled for a decree of divorce. As observed in the
earlier paragraph, the petitioner has also established the case of
desertion which is accepted by the Family Court.
18 For the reasons aforesaid, we find that there is no
substance in the Appeal preferred by the appellant and we do not
think it necessary to interfere in the impugned judgment and
order passed by the Family Court. Hence, the Appeal is
dismissed.
19 No order as to costs.
20 In view of the dismissal of the Appeal, Civil
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Application Nos.52 of 2014 and 270 of 2015 do not survive and
the same are disposed of.
21 The appellant wife is at liberty to approach
appropriate Court for seeking any reliefs as sought in the said
applications.
(P.D. NAIK, J.)
ig (A.S. OKA, J.)
