Vandana Rahul Gandale vs Rahul Dattu Gandale
2016 Latest Caselaw 2583 Bom

                                                                SA No. 343/14
                                        1




                                                                         
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                
                           SECOND APPEAL NO. 343 OF 2014

     Sau. Vandana Rahul Gandale,
     Age 28 years, Occu. Household
     and Service, R/o. Vikas Nagar,




                                               
     Bashi Road, Latur, Tal. & Dist.
     Latur.                                      ....Appellant.
                                                 (Ori. Resp. In RCA)
              Versus




                                      
     Rahul s/o. Dattu Gandale,
     Age 32 years, Occu. Pvt. Service,
                             
     R/o. Vikas Nagar, Bashi Road,
     Latur, Tal & Dist. Latur.                   ....Respondents.
                                               (Ori. Appellant in RCA)
                            
     Mr. Hemant Survey, Advocate for appellant.
     Mr. S.S. Halkude, Advocate for respondent.
      


                                      CORAM : T.V. NALAWADE, J.
   



                                      DATED : 7th June, 2016.

     JUDGMENT :

1) The appeal is filed against judgment and decree of

Regular Civil Appeal No. 129/2012, which was pending in District

Court, Latur. The first appeal of present respondent, husband

filed against judgment and decree of H.M.P. No. 62/2010, which

was filed for divorce by present appellant wife, is allowed by the

District Court and the decree of dissolution of marriage given by

the Trial Court is set aside. Both the sides are heard.

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2) In short, the facts leading to the institution of the

appeal can be stated as follows :-

It is the case of wife that her marriage with

respondent was solemnized as per Budha customs in Pune on

9.4.2007. It is contended that parents of both spouses were not

present at the time of marriage and it was witnessed by two

friends of the present respondent husband. It is contended that

certificate in respect of marriage is issued by Bhartiya Budha

Mahasabha Pune. No child is born out of this wedlock. It is the

case of wife that there was the cohabitation of only two days

after the marriage and then she was driven out of the

matrimonial house by the husband after giving illtreatment to

her. It is her case that husband had asked her to bring Rs. ten

lakh for his business and when this demand was not met with,

she was deserted by the husband.

3) It is the case of wife that on 25.2.2010 an attempt

was made by her and her parents to settle the dispute so that

the husband accepts her in matrimonial house. It is contended

that the husband and his relatives refused to accept her in

matrimonial house and they insisted that the demand of Rs. ten

lakh must be met with first. It is her case that another attempt

was made on 5.3.2010 by her to convince the husband, but that

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attempt also failed. It is her case that the husband then started

saying that he did not like her and that is the reason for which

he and his parents are not ready to accept her in the

matrimonial house. It is contended that due to this conduct of

the husband, she requested the husband on 9.3.2010 to give

divorce, but the husband refused to give divorce and so, she was

required to approach the Court for divorce. The divorce was

claimed on two grounds like desertion and cruelty.

4) The husband filed written statement and contested

the matter. He admitted that the marriage was solemnized at

Pune. He contended that there was consent of parents of both

the sides for the marriage. He contended that the wife was

taking education and as she wanted to complete the degree

course of Engineering she returned to Latur. It is the case of

husband that the wife was living in the house of his parents and

also in the house of parents of the wife as the house of parents

of wife is situated right in front of house of parents of husband.

5) It is the case of husband that after taking degree of

Engineering, the wife got job in M.S.E.D.C.L. in July 2008 and

then the conduct of the wife changed. It is his case that the wife

then started keeping distance from him and from his relatives. It

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is contended that there is instigation of parents to his wife to live

separate from him and due to such instigation, she deserted him

and she wants divorce. He contended that in January 2010 he

attempted to bring back the wife to matrimonial house, but she

refused to return to matrimonial house. He denied the

allegations of illtreatment and desertion made against him.

6) During the pendency of the proceeding, the husband

applied for getting interim maintenance and maintenance at the

rate of Rs. 700/- per month was granted and cost of Rs. 1000/-

was also granted. Issues were framed on the basis of aforesaid

pleadings. Both the sides gave evidence. The wife examined her

father, but the husband did not examine any other witness.

7) The Trial Court had held that the parties had started

living separate immediately after the marriage and so, the

period of separation was of more than two years. The Trial Court

had held that the wife had proved that there was illegal demand

of money from the husband and for that demand, the husband

had deserted her. By holding that both desertion and cruelty

were proved by wife, decree of divorce was given by the Trial

Court. The First Appellate Court has held that the wife never

cohabited with the husband and so, there was no question of

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desertion and cruelty.

8) The evidence of the wife is consistent with the

aforesaid pleadings. The father of the wife has given evidence

that two months prior to filing of the proceeding in 2010, the

petitioner wife disclosed to him about the marriage and about

the illtreatment and desertion. He has given evidence that he

made an attempt to reconcile the matter and to convince the

husband to accept the petitioner wife in the matrimonial house,

but he refused to do so. He has also given evidence that the

demand of Rs. ten lakh was made by husband and his relatives.

9) In the written statement, husband had not admitted

that the marriage was solemnized in absence of the parents of

both the sides, but in cross examination he gave clear admission

that only two friends were present as witnesses to the marriage.

He has denied the allegation made against him of demand of

money and cruelty to which wife was allegedly subjected.

10) The evidence of the parties as a whole shows that

they had love affair and they knew each other since the year

1999. The evidence as a whole shows that there was virtually no

cohabitation between the parties and immediately after the

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marriage, the wife had returned to Latur. The reasons given for

the same are different by both the sides, but they admit that

immediately after marriage wife returned to Latur, native place

and there was virtually no cohabitation at Pune. The wife has

given evidence that she continued to live with her parents and

the incident of marriage was not disclosed to the father till the

year 2010. Suggestion was given to wife in the cross

examination that she had lived in the house of parents of

present respondent at Latur, but that suggestion is denied.

Further, there was no specific pleading of any such period in

written statement. There is no specific pleading as to since when

the wife left the house of the parents of the husband and the

reason for her separate residence.

11) The evidence of both the sides show that meeting

was held by the parents of both the sides. The side of wife has

given evidence that husband refused to accept her back in the

matrimonial house and the condition was put that his demand of

Rs. ten lakh needs to be met with first. Husband admits in the

cross examination that for reconciliation such meeting was held.

12) In the cross examination of the wife it is brought on

the record that she used to see the husband in a garden from

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Latur. This circumstance shows that the wife was not living in the

house of parents of the husband and they used to see each

other secretly as marriage was not disclosed to parents by them.

The husband has not given reason for non disclosure of marriage

to the parents of both the sides. He has given evasive answers

to many relevant questions and that is done to avoid to give

some admissions. He, however, has admitted that only his

friends attended the marriage. He admits that he had place of

residence at Pune and the wife had no such accommodation at

Pune. He admits that father of the wife has no objection to this

marriage. In addition to this evidence, there is the evidence of

Nashiket, father of the wife to the effect that he tried to

reconcile the matter and he tried to convince the husband.

Parents are not examined by the husband to give evidence in

rebuttal. These circumstances create probability that the parents

of the husband were against this marriage and due to that the

husband did not disclose the marriage to anybody including his

parents and due to opposition of parents, he was not accepting

wife in the matrimonial house. These circumstances also show

that respondent had taken the petitioner to Pune by making

arrangement of creation of record of marriage. These

circumstances are sufficient to infer that he was making income.

He has given admission that he has made short film. He is M.Sc.

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and the wife was receiving education at the relevant time. In

spite of all these circumstances when the wife filed proceeding

for divorce the husband applied to the court for getting interim

maintenance. All these circumstances speaks loud against the

husband. In the Court he has tried to say that he was never

employed, he never got job and he is not doing any business

even of film making. These circumstances need to be considered

in the light of the allegations made against him that he was

asking the wife to give him Rs. ten lakh for his business. The

particulars of illtreatment are given by the wife in her evidence

which include the illegal demand of money.

13) The evidence as a whole is sufficient to prove that

there was a cohabitation of hardly two days after 9.4.2007 and

so, the parties were living separate for more than three years

prior to the date of petition. The admission of the wife that she

used to see the husband in a garden is not sufficient to infer that

there was the cohabitation. It can be said that she was eager to

resume cohabitation, but the husband never made such an

attempt. It is the wife who took first step for reconciliation and

then she took the step like filing divorce proceeding. The

submissions made show that after filing of the divorce

proceeding, husband had filed a proceeding for restitution of

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conjugal rights, but he did not prosecute the matter and the

matter came to be dismissed. These circumstances are sufficient

to infer that husband had no intention to cohabit with the

petitioner.

14) The learned counsel for husband placed reliance on

some reported cases like AIR 1972 SUPREME COURT 459

[Smt. Rohini Kumari Vs. Narenddra Singh], AIR 1979

ALLAHABAD 316 [Gopal Krishan Sharma Vs. Dr. Mithilesh

Kumari Sharma], AIR 1991 CALCUTTA 176 [Smt. Elokeshi

Chakraborty Vs. Sri Sunil Kumar Chakraborty], and AIR

1992 ALLAHABAD 260 [Smt. Vimlesh w/o. Sri. Prakash

Chand Sharma Vs. Sri Prakash Chand Sharma s/o. Ram

Prasad Sharma]. In these cases, the Apex Court and High

Courts have observed that without animus deserendi no charge

of desertion can be established. There cannot be dispute over

this proposition. The relevant material in that regard is already

quoted by this Court. The factum of separation for the period of

more than two years is established and the husband could not

give reasonable explanation for the separate residence. On the

other hand, the evidence of wife and the reasons given by the

wife are convincing and the Trial Court believed both the wife

and her father. In view of the material on the record and its

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appreciation done by the Trial Court and as no other material

was available, the Appellate Court ought not to have interfered

in the findings given by the Trial Court in favour of the wife. In

aforesaid cases some observations are made regarding the

meaning of 'cruelty' and nature of evidence which is required to

be given to establish 'cruelty'. Further, it is also observed that

what amounts cruelty depends upon the facts and

circumstances of each and every case. The aforesaid material is

sufficient to establish in the present matter that there was the

cruelty and due to the conduct of the husband, the wife cannot

be expected to continue the relationship with him.

15) The learned counsel for wife had placed reliance on

the case reported as AIR 1988 SUPREME COURT 121 (1)

[Shobha Rani Vs. Madhukar Reddy]. In this case, the Apex

Court has laid down that demand of dowry amounts to cruelty

for such purpose. In the case reported as AIR 2010 SUPREME

COURT 1042 [Manisha Tyagi Vs. Deepak Kumar], the Apex

Court has observed that physical violence need not be

established for proof of cruelty. It is laid down that from the

conduct of the parties, it can be inferred that the petitioner

cannot be expected to put up with abnormal conduct of other

side. In the present case also, both the parties are educated and

SA No. 343/14

the husband's conduct was of aforesaid nature. It can be said

that the harassment to the wife was of such nature that she

cannot be expected to put up with such conduct of the husband.

The observations made by the Apex Court in aforesaid cases can

be used against the husband in the present matter.

16) This Court has no hesitation to observe that the

District Court has committed error in not considering the

aforesaid material. The relevant circumstances and the

admissions given by the husband are not at all considered by the

District Court and unnecessary weight is given to the

circumstance that immediately after the marriage wife returned

to Latur and she started living with her parents. We are living in

such a society that the lady like petitioner cannot raise voice and

she is expected to do everything after taking the consent of the

husband. The husband was against the disclosure of the

marriage even to the parents and it was up to him to take the

wife to his house for cohabitation. Though the parties are

educated, the fact remains that the male is still in dominating

position in our society. The material is sufficient to infer that

husband treated the wife with cruelty and he avoided to take the

wife to his house for cohabitation. The Trial Court had considered

these circumstances in proper perspective and the decree of

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divorce was given by the Trial Court. This Court holds that the

decision of the District Court needs to be set aside to restore the

decree of divorce.

17) In the result, the appeal is allowed. The judgment

and decree delivered by the District Court, Latur is hereby set

aside. The judgment and decree of the Trial Court by which

decree of divorce was given is hereby restored.

[ T.V. NALAWADE, J. ]

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