Aswini Ashok Bhosale vs Shri Ashok Narsingrao Bhosale & ...
2016 Latest Caselaw 3779 Bom

                                                                              FCA113/06
                                              1




                                                                            
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                APPELLATE SIDE,
                                   AT MUMBAI




                                                    
                         FAMILY COURT APPEAL NO.113 of 2006

              Mrs. Ashwini Ashok Bhosale,




                                                   
              Age 42 years, Occu.Nil,
              C/o- Sudhakar M. Shinde,
              B/6/91, Shanti Rakshak
              Society, Yerawada, Pune 6             ..    Appellant
                                                    (Original Respondent)




                                       
                       V/s
                             
              Mr. Ashok Narsinghrao Bhosale,
              Age : 51 years, Occ: Service,
              R/at Amdar Niwas in front of
              Akashwani Behind Mantralaya,
                            
              Mumbai- 400 032 and
              R/o - Ganpatnagar Chwal,
              N.A.H. Room No.-4, Ahela,
              Ulhasnagar - 4.               ..    Respondent
                                             (Original Petitioner)
      


     Mr. Dormaan J. Dalal, Advocate i/by Mr. Sugandh                                     B.
   



     Deshmukh, Advocate for the appellant/ applicant.

                                   CORAM :-       A. S. OKA &
                                                  C. V. BHADANG, JJ.

Reserved on : 3rd February, 2016

Pronounced on : 13th July, 2016

JUDGMENT : (Per C. V. Bhadang, J.) (Signed judgment is pronounced by A. S. Oka, J. as per clause (i) of Rule 1 of Chapter XI of Bombay High Court Appellate Side Rules as C. V. Bhadang, J. is sitting at Panaji.)

By this appeal, the appellant is challenging

FCA113/06

the part of the judgment and order dated 23/05/2006

passed by the Family Court at Pune in P.A. No.635/2004

and P.E. No.134/2003, whereby the learned Judge of

Family Court has allowed P.A.No.635/2004 filed by the

respondent, thereby granting a decree of dissolution of

marriage on the ground of adultery and cruelty under

Sections 13(1)(i) and (ia) of Hindu Marriage Act, 1955

(the Act, for short).

2. The brief facts necessary for the disposal of

the appeal may be stated thus :

That the respondent no.1 herein had filed

P.A.No.635/2004 before the Family Court at Pune seeking

divorce under Sections 13(1)(i),(ia) and (ib) in which

the present appellant was the respondent no.1 while one

Ashok Saini was arrayed as respondent no.2. The

marriage between the appellant and the respondent herein

was solemnized on 17/12/1984 at Pune whereupon the

appellant started cohabiting with the respondent, who

was then staying in his joint family at Ulhasnagar.

It was contended by the respondent that the

appellant was never interested in cohabiting with the

respondent and was saying that she wanted to marry an

FCA113/06

educated person having Officer's job while the

respondent was a Graduate and working as a Class IV

employee. It was contended that the appellant used to

humiliate the respondent and his family members and used

to pick up quarrel with them. The respondent was forced

to reside separately from his family members. However,

even thereafter, the conduct of the appellant did not

improve. She was frequently going to the house of her

parents taking away cash of the respondent. In March,

1993, the appellant left the matrimonial house without

informing the respondent or his family members. The

respondent was required to fetch the appellant back for

cohabitation. In a similar incident in December, 1993,

the appellant left the matrimonial house, carrying cash.

Every time, the respondent was required to fetch the

appellant back.

3. It was next contended that in the meanwhile,

the appellant developed illicit relationship with one

Ashok Saini (respondent no.2 before the Family Court).

She used to stay alone with Ashok Saini whenever the

respondent was out for work and when children were in

the school. The appellant also accompanied and stayed

FCA113/06

with Ashok Saini in Sarthak Lodge at Karjat and Murbad

Guest House at Kalyan, leaving the house, on the pretext

that she was going to the house of her sister at

Andheri. The respondent tried to persuade the appellant

to desist from such illicit relationship, however, to no

avail. Ashok Saini had admitted in writing about the

adulterous relation. The members of the Jagruti Mahila

Mandal, working in the locality also tried to convince

the appellant to mend her ways.

4. On 28/06/2001, the appellant left the

matrimonial house along with Ashok Saini and her

daughter Aarti and since then, was living with Ashok

Saini.

5. The appellant contested the petition denying

the allegations made and the charges levelled. It was

contended that she was not treated well by the

respondent and his family members and, therefore, her

father had purchased a separate house in the year 1988

with household articles, whereupon the appellant and the

respondent started residing separately. However, the

respondent continued to harass her with an intention to

FCA113/06

drive her out of the house. In the said attempt, the

respondent is making false and baseless allegations,

maligning her character. She denied that she was having

any illicit relationship with Ashok Saini.

6. Ashok Saini (the original respondent no.2) also

resisted the petition, denying the illicit relationship.

It was contended that since 14/06/2001, he is residing

at Matunga Railway Quarters. In so far as the writing

given by him, it was contended that it was obtained from

him under threat and coercion.

7. On the basis of rival pleadings, the Family

Court raised as many as eight issues.

8. The respondent examined himself and his son

Avinash along with Sukanya Karande and Aparna Bhalerao,

the workers of the Jagruti Mahila Mandal. The appellant

examined herself, her sister Ravati Bhosale and her

daughter Aarti.

The original respondent no.2 did not lead any

evidence.

FCA113/06

9. The learned Judge of the Family Court answered

issue nos.1 and 2 in the affirmative, thus holding that

after solemnization of the marriage, the appellant had

voluntary sexual intercourse with the original

respondent no.2 and that after solemnization of

marriage, the appellant treated the respondent with

cruelty. In that view of the matter, the petition came

to be allowed, ig granting a decree for dissolution of

marriage, which is subject matter of challenge in this

appeal.

10. We have heard Shri Dalal, the learned Counsel

for the appellant. None for the respondent. With the

assistance of the learned Counsel for the appellant, we

have perused the impugned judgment and have gone through

the evidence on record.

11. It is submitted by the learned Counsel for the

appellant that there is delay of almost five years in

filing the petition for divorce, which is not explained.

It is contended that the petition is filed as a

counterblast to the order of maintenance passed on

30/01/2003 in favour of the appellant. It is submitted

FCA113/06

that the Family Court was in error in coming to the

conclusion, that there were illicit relationship between

the appellant and Ashok Saini. It is submitted that the

reliance placed on the evidence of Avinash is misplaced

as it lacks credibility and is tainted as Avinash was

staying with the respondent. Neither the receipts from

Sarthak Lodge are produced nor the Manager of the said

lodge is examined. ig It is contended that the evidence of

Aparna Bhalerao and Sukanya Karande is not convincing

and could not have been relied upon. He, therefore,

submits that the appeal be allowed.

12. The Family Court has granted the decree for

dissolution of marriage on the grounds of adultery and

cruelty. Thus, the following points arise for our

determination in this appeal, we have recorded our

findings against the same, for reasons, which follow :

(i) Whether the respondent proves that after

the solemnization of the marriage the

appellant had voluntary sexual intercourse

with Ashok Saini (the original respondent

no.2) ?

FCA113/06

(ii) Whether the respondent proves that after

the solemnization of marriage, the appellant

treated him with cruelty ?

(iii) Whether the impugned judgment is legal

and proper ?

(iv) What order ?

13. At the outset, it is necessary to mention that

in so far as the ground of cruelty is concerned, the

Family Court has come to a conclusion that apart from

the act of the appellant of maintaining adulterous

relationship with Ashok Saini (which, according to the

Family Court, is itself an act of cruelty), the

matrimonial relations between the parties were by and

large peaceful except normal wear and tear of such

relationship. The Family Court has held that it was

only when Ashok Saini entered into the relationship that

they went sore. Thus, independently, the ground of

cruelty has not been accepted. The Family Court has

found and to our mind rightly so, that the evidence on

record goes to prove that the marital life of the

parties was "like any other ordinary marital life having

FCA113/06

its own wear and tear". It has been held that only

after the original respondent no.2 entered into their

marital life "scene changed". It has been held that

except for the act of adultery committed by the

appellant, there is no evidence as regards the

allegations of cruelty committed by the respondent or

his family members. Thus, we confine ourselves with

point no.1, namely the ground of adultery.

14. The Family Court, in arriving at a finding that

the illicit relationship between the appellant and Ashok

Saini are proved, has placed heavy reliance on the

evidence of Avinash and affidavit sworn by Ashok Saini.

The evidence led by the parties indicates that from 1984

to 1988, the parties resided in the joint family of the

respondent and from 1988 to 1993, they resided

separately from the family of the respondent. The

parties have been staying separately from each other

from 28/06/2001 and they have contrary versions as to

how they separated. According to the respondent, on

that day, Ashok Saini in the presence of brother of the

respondent, namely Ganesh Bhosale along with Uttam

Bhosale and Rajesh Pachare and several ladies, had given

FCA113/06

it in writing admitting about illicit relationship

between him and the appellant. According to the

respondent, after this, the appellant along with their

daughter Aarti, left the matrimonial home accompanying

Ashok Saini. On the contrary, according to the

appellant, she was driven out of the matrimonial home on

28/06/2001. The case made out by the respondent is that

the appellant ig developed illicit relation with Ashok

Saini from the year 1999. Ashok Saini used to visit the

house of the respondent in his absence and the appellant

and Ashok Saini had gone to Sarthak Lodge at Karjat on

21/01/2001 and 14/02/2001 where they had physical

relations. Although the respondent claimed that he has

documentary proof about the appellant and Ashok Saini

having visited and stayed at Sarthak Lodge, no such

evidence is produced on record. Thus, we are left with

the rival versions given in their evidence. Admittedly,

Aarti Bhosale is staying with the appellant while

Avinash Bhosale is staying with the respondent. There

is also evidence of Sukanya Karande, Aparna Bhalerao,

who were the office bearers of Jagruti Mahila Mandal.

Admittedly, the appellant was also a member of the said

Mahila Mandal.

FCA113/06

15. It would be necessary to refer to the evidence

of Avinash, on which the Family Court has placed heavy

reliance. Avinash has stated that the relation between

his father and mother were cordial. He states that when

he was aged 15 years and studying in 10th standard, he

noticed that his mother used to remain out of the house,

Saini.

most of the time, even during night, along with Ashok

After he used to return home from school, he

used to find Ashok Saini in their house along with his

mother and his mother used to ask him to play outside.

Even when he made a demand for serving food, she was

asking him to come after some time. In the event he

would not listen, his mother used to tell his father

that he was playing outside the house for the whole day

and she also used to beat him. He has stated that Ashok

Saini used to come to their house and ask him about

their mother. He further states that whenever he would

say that he does not know, where his mother is, Ashok

Saini used to get angry and some times, also used to

beat him. Avinash has stated that Ashok Saini used to

tell him that his mother was his (Ashok Saini's) wife

and the children are begotten to her from him (from

FCA113/06

(Ashok Saini). Ashok Saini also used to inform him that

on the previous day, his mother was with him for the

whole day. He states that children in the locality used

to tease him saying that he was Ashok Saini's son.

Avinash has gone to the extent of saying that when he

told his mother about the children in the locality

teasing him, his mother used to ask him to ignore the

same "as whatever the children were saying was correct

and a fact". He further states that when he tried to

convince his mother saying that whatever she was doing

was not proper, his mother used to tell as to what she

is supposed to do sitting at home in the night. He

claims that his mother used to tell him that they will

go and reside with Ashok Saini as Ashok Saini will

provide all the luxuries of life, which they were not

getting from his father (respondent). He claims that

once Ashok Saini also told him that he and Aarti can

reside along with him.

16. We find this part of the evidence to be not

reliable and acceptable. The evidence in such cases has

to be tested and appreciated on the touchstone of

natural human conduct. It is unlikely that the person,

FCA113/06

who has illicit relationship with a lady would tell her

minor son that his mother was with him for the entire

day and/ or that he is a child begotten to her from him.

It is also not acceptable that a lady would tell her son

admitting such relationship and asking the son to ignore

the comments by the children saying that whatever they

are saying is correct. We also find that the evidence

about the appellant telling Avinash that they will go

and reside with Ashok Saini to be highly improbable.

Even when a lady ventures into such adulterous

relationship, she would tend to keep this under wrap and

would not openly tell her son that all that is being

said is correct. It has come on record that Ashok Saini

was residing in the same locality and he was married

having two children. The Family Court has refused to

accept that the evidence of Avinash smacks of tutoring

for the reason that he has grown up and can understand

things and is no susceptible to tutoring. We find that

the evidence of Avinash smacks of exaggeration and has

inherent improbabilities when tested on the touchstone

of normal human conduct. If this is considered along

with the fact that after the parties separated, Avinash

was all along staying with his father, the possibility

FCA113/06

of the evidence of Avinash being tainted on account of

it being tutored, in our considered view, cannot be

ruled out. As compared to Avinash, we find the evidence

of Aarti to be quite natural and balanced. Although the

Family Court has observed that Aarti used to be at

school as her school was in the afternoon, it has come

on record that her school timings were from 7.30 a.m. to

12.30 p.m. and she used to be back home by 1.30 p.m.

She was attending tuition from 3.00p.m. to 5.00 p.m.

Thus, had it been the case that the appellant used to

spend time in her house with Ashok Saini, Aarti was a

natural witness to any such incident. On a careful

consideration of the evidence of Avinash and Aarti, we

would prefer to rely on the evidence of Aarti than

Avinash.

17. This takes us to the evidence of Aparna

Bhalerao. She claims that from 1999, Ashok Saini used

to visit the house of the respondent where the appellant

and Ashok Saini would spend time behind closed doors.

She also claims claims that both of them used to go out

together and they were behaving "as husband and wife."

She has, thereafter, deposed about the incident dated

FCA113/06

28/06/2001, in which Ashok Saini had admitted in writing

about illicit relationship between him and the

appellant. She also claims that the appellant used to

take tiffin for Ashok Saini and when Ashok Saini shifted

from VTC ground, the appellant also accompanied him. In

the cross-examination, this witness has stated that her

house is in front of the house of Ashok Saini. She is

not residing in the Chawl where the appellant and the

respondent were residing. She has admitted that from

her house, the house of the appellant and respondent is

not visible. She has not made any complaint to the

Mahila Mandal about the atmosphere in their family being

spoiled on account of the relation between the appellant

and Ashok Saini. She claims that affidavit was executed

by Ashok Saini in the house of Ganesh Bhosale, the

brother of the respondent. She had gone there "out of

curiosity" to see "why Ashok Saini was called". She has

stated that Ganesh Bhosale had called some other persons

also. It was suggested to this witness that as Ashok

Saini was residing with his wife and children, there was

no occasion for the appellant to take a tiffin for Ashok

Saini, which she denied.

FCA113/06

18. The evidence of Sukanya Karande is more or less

on the similar lines as that of Aparna Bhalerao. It was

suggested to this witness that out of 'jealousy' between

office bearers of Mahila Mandal that she is deposing

false. The evidence on record clearly shows that Ganesh

Bhosale along with Uttam Bhosale and Rajesh Pachare had

called Ashok Saini from his residence in the Matunga

Railway Quarters (where he had since shifted).

                              ig                                                        It is

     also      the      evidence      on   record     that     there        were     several
                            

ladies, who had gathered at the place when Ashok Saini

had admitted the illicit relationship in writing. We

find that considering the circumstances in which the

writing is said to be given, the possibility of it being

a result of coercion, cannot be ruled out. That apart,

we are of the considered view that such admission by a

third person namely the alleged adulterer cannot bind or

act to the detriment of the appellant. The Family Court

has observed that Ashok Saini failed to enter into

witness box to state that the writing was obtained under

coercion. It is trite that the evidence pertaining to

such a writing has to be considered as a whole and if

there are sufficient circumstances, which have already

come on record to indicate that Ashok Saini was called

FCA113/06

from his house and in the presence of the some ladies

from locality, who were the members of Mahila Mandal,

the writing was said to be given, there is every

possibility that it was an outcome of coercion. As

noticed earlier, in any case, this cannot be used to the

detriment of the appellant, to record a finding about

the alleged illicit relationship. We find that no

implicit reliance ig can be placed on the evidence of

Aparna Bhalerao and Sukanya Karande.

19. We are conscious of the fact that direct

evidence of such an adulterous relationship cannot be

expected or insisted upon. The Family Court has relied

upon the decision of the Supreme Court in the case of N.

G. Dastane Vs. Mrs. S. Dastane, 1975(II) S.C. 326 in

order to hold that grounds of divorce like desertion,

cruelty and adultery need not be proved beyond

reasonable doubt and can be proved by balance of

probability or preponderance of probability. It has

been held that where circumstances are such that they

would lead a reasonable man to the conclusion that

adultery must have been committed, the adultery can be

inferred in such cases even from the "evidence of

FCA113/06

opportunity." It is true that more often than not, in

such cases, it is a matter of inference from the

circumstantial evidence, whether there were any such

illicit relationship and this can be proved on a

preponderance of probability and even the evidence of

opportunity would be sufficient to infer the existence

of any such relationship. This presupposes that there

is clear and ig acceptable evidence of such opportunity

which alone can then lead to a reasonable inference

about existence of such relationship. The analysis of

the evidence as above, in our considered view, is not

sufficient to establish the existence of such

opportunity, so as to draw further inference about the

existence of such relationship. We are not unmindful of

the fact that adultery is easy to allege and equally

difficult to prove. However, for this reason alone, the

Court cannot act on the basis of evidence which is found

to be unacceptable with inherent improbabilities. It

has to be borne in mind that such a finding has serious

consequences not only on the status of the marriage, but

also of casting serious aspersions on the character and

the dignity of an individual and, therefore, such a

finding can be returned only where there is clear case

FCA113/06

made out and there is circumstantial evidence produced,

which would indicate the existence of such an

opportunity which can lead to a reasonable inference

about existence of such relationship. Such an inference

and finding has to be based on evidence, which is

natural and acceptable and one, which inspires

confidence and not which is either fanciful or has

inherent infirmities, which would entail such evidence

being discarded.

20. We, therefore, find that the respondent has

failed to establish by acceptable evidence that the

petitioner, after solemnization of marriage, had

voluntary sexual intercourse with Ashok Saini and

finding to that effect, recorded by the learned Family

Court cannot be sustained. As noticed earlier, the

finding of cruelty is solely based on the finding of

adultery and, therefore, the finding as to cruelty also

cannot be sustained. We, therefore, answer the point

nos. (i) to (iii) in negative.

21. In the result, the appeal is allowed. The

FCA113/06

impugned judgment and decree is hereby set aside. The

petition filed by the respondent is dismissed.

In the circumstances, there shall be no order

as to costs.

                        C. V. BHADANG, J.         A. S. OKA, J.




                                     
     SMA