Bombay High Court
Prabhakar Govindrao Lekurwale vs Sau. Anita @ Mona W/O Prabhkar ... on 13 October, 2016
Bench: V.A. Naik
FCA 35/16 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 35/2016
Prabhakar Govindrao Lekurwale,
aged 40 years, occupation agriculturist,
resident of Deoli (Sawangi),
Tahsil Hingna, District Nagpur. APPELLANT
.....VERSUS.....
Sou. Anita @ Mona w/o Prabhakar Lekurwale,
aged 37 years, occupation private,
resident of c/o Shri Bachale, Omnagar,
Sakkardara, Nagpur, District Nagpur. RESPONDENT
Mrs. T.G. Dhote, counsel for the appellant.
Shri R.R. Prajapati, counsel for the respondent.
CORAM :SMT.VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATE : 13 TH OCTOBER, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)
The family court appeal is ADMITTED and heard finally at
the stage of admission with the consent of the learned counsel for the
parties after perusing the record and proceedings.
2. By this family court appeal, the appellant-husband has
challenged the common judgment of the Family Court, dated 29.10.2015,
dismissing the petition filed by the appellant-husband for a decree of
divorce on the ground of cruelty and allowing the petition filed by the
respondent-wife for restitution of conjugal rights.
FCA 35/16 2 Judgment
3. The appellant husband (hereinafter referred to as the
"husband" for the sake of convenience) and the respondent-wife
(hereinafter referred to as the "wife") were married on 23.06.2012,
according to the Hindu rites and custom. The wife accompanied the
husband to her matrimonial home at Deoli. The parties stayed together
in the matrimonial home till 21.11.2012, and since then the parties are
living separately. After the parties separated, the wife filed the petition
for restitution of conjugal rights and the husband filed the petition for a
decree of divorce on the ground of cruelty.
4. It was pleaded by the husband in the petition for divorce that
since the beginning of the marriage, the wife was not behaving properly
with the husband, his father and his paternal uncle. It is pleaded that the
wife used to abuse them and used to taunt that they are beggars and
uneducated. It is pleaded that the wife was unhappy and dissatisfied with
the meager income earned by the husband as an agriculturist from the
land admeasuring 3 acres. The husband pleaded that the wife was highly
educated and possessed the degrees of M.A. and B.Ed. It is pleaded that
due to her education, the wife used to taunt the husband and say that she
would earn for herself, as even before the marriage, she was earning.
According to the husband, the wife's bio-data was handed over to him in
the handwriting of Aruna, the elder sister of the wife, wherein the date of
birth of wife was mentioned as 15.08.1980. It is pleaded that it was
FCA 35/16 3 Judgment
detected by the husband from the documents of the wife that the date of
birth of the wife was not 15.08.1980, but she was born on 14.08.1975. It
is pleaded that the husband tried to enquire about the correct date of
birth of the wife from her and also as to why she had falsely mentioned
that she was born on 15.08.1980, but instead of answering the query, the
wife abused the husband and threatened that she would commit suicide.
It is pleaded that when the married elder sister of the husband was
hospitalized near the matrimonial home for delivery and the husband
asked the wife to accompany him to the hospital, the wife flatly refused.
It is pleaded that the wife picked up quarrel and told the husband that
she was not a servant to look after the relatives of the husband. It is
pleaded that the wife used to pick up quarrel with the husband when he
told her that she should perform the matrimonial duties. It is pleaded
that on 22.11.2012, the wife left the matrimonial home with her brother
for joining her parents for Diwali, but the husband was not invited. It is
pleaded that immediately on the same day, i.e. 22.11.2012, the wife
returned to the matrimonial home in a fit of rage. It is pleaded that the
wife was furious and asked the husband as to why he had informed
Latatai, who was the mediator in the marriage between the parties, that
the date of birth of the wife was 14.08.1975 and not 15.08.1980. It is
pleaded that when the husband told the wife that it was necessary for him
to inform Latatai, the mediator, about the true position, the wife got so
furious that she started throwing utensils on the husband and threatened
FCA 35/16 4 Judgment
that she would commit suicide and involve him in a false case. On the
same day, the wife left the matrimonial home to join her parents. It is
pleaded that the wife had played fraud on the husband by depicting that
her date of birth is 15.08.1980, when the date of birth of the wife was
14.08.1975. It is pleaded that the wife used to always quarrel with the
husband on trifle issues. It is pleaded that the wife levelled false
allegation that the father of the husband had bad habits of playing satta,
lottery, gambling, etc. though the wife was aware that the husband's
father was a simple person with no vices. It is pleaded that the wife
picked up quarrel with the elder sister of the husband and made false
allegation against her and her in-laws. It is pleaded that the wife was in
the habit of unnecessarily threatening the husband, picking up quarrel
with him, refusing to do the routine household work and levelling false
allegations against the husband and his family members. It is pleaded
that the wife used to receive phone calls in the night at 3.00 a.m. to 4.00
a.m. and whenever, the husband tried to make an enquiry, the wife
declined to answer properly. It is pleaded that when Purushottam and
Pintu, the friends of the husband, went to her parental home and tried to
ask her to mend her ways, she paid no heed to them. It is pleaded that
the wife and her relatives asked Purushottam and Pintu to leave her
parental home. It is pleaded that customary meetings were arranged in
the house of Wamanrao and Radke, but the wife was not interested in
joining the company of the husband. It is pleaded that in the meeting in
FCA 35/16 5 Judgment
the house of Radke, there was an enquiry about the pregnancy of the wife
and when the husband suggested that she should undergo DNA test, the
wife flatly refused and insulted the husband and stated that he should go
for the DNA test. It is pleaded that after the wife left the matrimonial
home on 22.11.2012, she neither returned to the matrimonial home, nor
did she make any efforts to return to the matrimonial home. The husband
sought a decree of divorce on the ground of cruelty.
5.
The wife filed the written statement and denied the claim of
the husband. Every adverse allegation made by the husband against the
wife was denied by her. It was denied that the bio-data of the wife in the
handwriting of her sister was presented to the husband before the
marriage in which her date of birth was recorded as 15.08.1980. It is
denied that the date of birth of the wife was 15.08.1980 and not
14.08.1975. The wife denied that she did not accompany the husband to
the hospital where his elder sister was hospitalized for delivery. The wife
denied that she had thrown the utensils on the husband in a fit of anger
on 22.11.2012 after he had informed about the knowledge of the correct
date of birth of the wife, to Latatai. The wife denied that the wife and her
parents had ill-treated Purushottam and Pintu when they had been to her
parental home to ask her to behave well. The wife denied that she
refused to join the company of the husband in the customary meetings. It
was denied that the husband had suggested DNA test for her and that she
FCA 35/16 6 Judgment
had flatly refused to undergo the test. The wife denied that she picked up
quarrel with the elder sister of the husband and she had alleged that the
father of the husband was indulging in bad habits like satta, lottery,
gambling, etc. The wife stated in the specific pleadings that the husband
had levelled false allegations against her only to escape his liability
towards her and their minor daughter. The wife pleaded that she had
filed the proceedings for restitution of conjugal rights and the petition
filed by the husband for divorce was liable to be dismissed.
6.
In the petition filed by the wife for restitution of conjugal
rights, she had pleaded that the behaviour of the husband and his family
members was good till September-2012. It is pleaded that after the wife
became pregnant in the month of July-2012 and the pregnancy was
confirmed in the hospital, the behaviour of the husband towards the wife
changed. It is pleaded that the husband always used to say that he
wanted a boy and not a girl child. The wife pleaded that on 04.09.2012,
the husband had taken her to Dr.Vaidya's Hospital for a general check-up.
It is pleaded that the behaviour of the husband changed after 04.09.2012
and he started quarreling with the wife on petty matters. It is pleaded
that on 22.11.2012 the brother of the wife came to the matrimonial home
to take her to her parental home and though the wife asked the husband
to accompany her to her parental home, and he agreed that he would
come on the next day, on the next day, he made a call to the wife that he
FCA 35/16 7 Judgment
was desirous of seeking a divorce. It is pleaded that the wife went to the
matrimonial house on 22.11.2012 to request the husband and his family
members to take her back, but in the presence of his friends, the husband
quarrelled with the wife and stated that the child in the womb of the wife
was not his child. It is pleaded that the husband told her to abort the
child or else the marriage between the parties should be dissolved. It is
pleaded that customary meetings were held for the settlement of the
dispute between the parties. But the husband was not ready to take the
wife to the matrimonial home. The wife, therefore, sought a decree for
restitution of conjugal rights.
7. The husband filed the written statement and denied the claim
of the wife in the proceedings filed by her for a decree of restitution of
conjugal rights. The husband reiterated the facts pleaded by him in his
petition for divorce and denied the allegations levelled by the wife against
him in the petition filed by her for restitution of conjugal rights. The
husband sought for the dismissal of the petition filed by the wife and
prayed that both the petitions may be tried together.
8. On the aforesaid pleadings of the parties, the Family Court
framed the issues and on an appreciation of the evidence tendered by the
parties, by the common judgment dated 29.10.2015, allowed the petition
filed by the wife for restitution of conjugal rights and dismissed the
FCA 35/16 8 Judgment
petition filed by the husband for a decree of divorce. The husband has
challenged the common judgment in this appeal.
9. Mrs. Dhote, the learned counsel for the husband, submitted
that the Family Court was not justified in dismissing the petition filed by
the husband for a decree of divorce by drawing inferences that were not
supported by evidence. It is submitted that the evidence tendered by the
husband on affidavit in regard to the unwillingness of the wife to do the
routine household work, the taunting by the wife that she was dissatisfied
and unhappy with the meager income of the husband as an agriculturist
and that she was more educated than the husband has remained
unchallenged, as the husband was not cross-examined on behalf of the
wife in regard to the said evidence. It is stated that there is no cross-
examination of the husband in regard to the egoistic and whimsical
behaviour of the wife. It is stated that the husband had clearly stated in
his pleadings and also in his evidence that on 22.11.2012, after the wife
returned to the matrimonial home in a fit of rage, as she was informed
that the husband had told the mediator, Latatai that the date of birth of
the wife was not 15.08.1980, as wrongly stated in the bio-data and was
14.08.1975, the wife threw utensils on the husband in a fit of rage and
there is no cross-examination of the husband on this point. It is stated
that the Family Court erroneously held that the wife was performing the
daily duties, as there was no other woman in the matrimonial home to
FCA 35/16 9 Judgment
perform the same and it was not the husband's case that he had
employed a servant to do cooking, cleaning of utensils and cleaning of
the house. It is submitted that the Family Court erroneously held that
the evidence of Wamanrao and Purushottam was liable to be discarded,
as it was word to word same and that they had not specified the dates
of the incidents of the alleged abuse and the refusal on the part of the
wife to serve tea to them. It is stated that the Family Court should not
have disbelieved the evidence of Wamanrao on the ground that it
was difficult to believe that he could visit the husband's house 4 to 5
times in a week as his house was 8 kilometers away from the house of the
husband. It is stated that the observation of the Family Court, that the
friends and the relatives of the husband, specially Wamanrao would not
have visited the husband's house when the wife had refused to serve
tea to them, is not worthy of acceptance. It is pleaded that the Family
Court erroneously refused to accept the case of the husband in regard
to the fraud played by the wife in depicting that her date of birth
was 15.08.1980 though the copy of the bio-data was placed by the
husband on record and there was discrepancy between the different
certificates of the wife, pertaining to the date of birth. It is submitted
that the case tried to be made out by the wife, that the husband started
ill-treating her after he became aware that the foetus in the womb of
the wife was a girl and not a boy, is falsified by the evidence of the wife
in her cross-examination. It is submitted that merely because the wife
FCA 35/16 10 Judgment
had filed the petition for restitution of conjugal rights before the
husband filed the petition for divorce, the Family Court should not
have held that the wife had genuinely intended to cohabit with the
husband and the husband was not desirous to stay with her. It is
submitted that after the husband's evidence was recorded, the wife filed
the proceedings against the husband under the provisions of the
Protection of Women from Domestic Violence Act and claimed damages
to the extent of Rs.20,00,000/-, in view of the separation between the
parties. The learned counsel relied on the judgment, reported in
2008 (3) BCR 241 (Sameersingh Sureshsingh Suryawanshi Versus Savita
Sameersingh Suryawanshi) to substantiate her submission. It is submitted
that the Family Court was not justified in holding that the allegations
levelled by the husband depicted ordinary wear and tear in the marital
life and they were not enough for granting a decree of divorce. It is
pleaded that in that circumstances of the case, a decree of divorce be
passed in favour of the husband after setting aside the decree of
restitution of conjugal rights granted in favour of the wife.
10. Shri Prajapati, the learned counsel for the wife, supported the
judgment of the Family Court and submitted that since the husband had
utterly failed to prove that the wife had treated him with cruelty, the
Family Court had rightly dismissed the petition filed by the husband for a
decree of divorce. It is submitted that right from the date of the marriage,
FCA 35/16 11 Judgment
the wife was desirous of living in the company of the husband happily,
but the wife was forced to leave the matrimonial home within five months
from the solemnization of the marriage. It is stated that the husband
started ill-treating the wife after he realized that there was a girl child in
her womb and not a boy. It is stated that in the two customary meetings
held for ensuring a settlement between the parties, the husband refused
to cooperate. It is stated that after 04.09.2012, when the wife returned
from the hospital of Dr.Vaidya, the husband started ill-treating her and
fighting with her on trifle issues. It is stated that the evidence of
Wamanrao and Purushottam was rightly disbelieved by the Family Court,
as the evidence in their examination-in-chief was word to word same and
they were interested witnesses. It is submitted that the husband ought to
have examined his father, who resided in the matrimonial home or at
least his neighbours to substantiate his case. It is stated that it was
necessary for the husband to prove by examining Latatai that a false bio-
data written in the handwriting of the elder sister of the wife was
forwarded to the husband. It is stated that though a girl child named
Pihu was born on 28.03.2013, it is falsely stated by the husband that on
the said date, the wife had quarrelled with the husband and levelled false
allegation against the father of the husband that he was indulging in
playing satta, lottery, gambling, etc. It is stated that when the girl child
was born to the wife on 28.03.2013, it was not possible that the wife fight
with the husband in the matrimonial home on the said date and abuse the
FCA 35/16 12 Judgment
husband and his father. It is submitted that on a proper appreciation of
the evidence of the parties, the Family Court has rightly disbelieved the
case of the husband that the wife was treating the husband with cruelty
and has granted a decree of restitution of conjugal rights in favour of the
wife. The learned counsel for the wife, relied on the judgment, reported
in II 2008 DMC 278 (C.R. Chenthilkumar Versus K. Sutha) to
substantiate his submission that when family members and friends and
neighbours are not examined for proving the cruelty by the wife, a decree
of divorce cannot be granted. The learned counsel sought for the
dismissal of the Family Court appeal.
11. On hearing the learned counsel for the parties and on a
perusal of the record and proceedings, it appears that the following points
arise for determination in this appeal :-
(I) Whether the husband has proved that the wife
has treated him with cruelty and whether he is
entitled to a decree of divorce on the ground
of cruelty?
(II) Whether the wife is entitled to a decree for
restitution of conjugal rights?
(III) What order?
FCA 35/16 13 Judgment
12. To answer the aforesaid points for determination, it would be
necessary to consider the pleadings of the parties and the evidence
tendered by them. We have referred to the pleadings of the parties in the
earlier part of the judgment, in detail. It would, therefore, be necessary
to consider the evidence tendered by the parties. The husband had
examined himself and had examined three other witnesses in support of
his case that the wife had treated him with cruelty. Apart from the
husband himself, the husband had examined Wamanrao and Purushottam
to show that the wife treated the husband with cruelty. The husband
examined Sangita Sahare to substantiate his case that the bio-data of the
wife in the handwriting of her sister Aruna was handed over to Sangita's
niece Snehal and the said bio-data falsely recorded the date of birth of the
wife to be 15.08.1980 though the date of birth of the wife is 14.08.1975.
In his evidence on affidavit, the husband reiterated the facts stated by him
in the petition. Though the husband was cross-examined at length on
behalf of the wife, there is absolutely no cross-examination on the
evidence of the husband in regard to the statements that the wife was
always insulting the husband and his family members and was calling
them uneducated and beggers. There is no cross-examination on the
evidence of the husband that the wife was always dissatisfied with the
meager income of the husband. There was no cross-examination on the
evidence of the husband that the wife was egoistic and whimsical and
always boasted about her higher educational qualifications, as compared
FCA 35/16 14 Judgment
to the husband. There is also no cross-examination of the husband on his
evidence that when the wife returned to the matrimonial house on
22.11.2012, she was furious that the husband had informed Latabai, the
mediator to the marriage, that the wife had falsely mentioned her date of
birth to be 15.08.1980 though it was 14.08.1975. There is no cross-
examination of the husband on the evidence that on 22.11.2012, when
the husband told the wife that it was necessary for him to tell Latatai, the
mediator, that the wife had wrongfully supplied him information about
her date of birth, the wife was furious and she threw utensils on the
husband in a fit of rage. There is no cross-examination of the husband
that on 22.11.2012, the wife threatened the husband that she would
commit suicide as he had wrongly informed Latatai about the dispute
between the parties in regard to her date of birth. Though the husband
was cross-examined on the aspect of the quarrel between the husband
and the wife and the levelling of false allegations by the wife against her
father-in-law that he was a man with vices as he was playing satta,
lottery, gambling, etc., there is no cross-examination in respect of the
allegations narrated hereinabove. Though the husband was cross-
examined in respect of the other allegations made by him against the wife
depicting cruelty, the husband had denied almost every suggestion of the
wife.
13. The husband examined Wamanrao, who stated that the
husband was his brother-in-law, i.e. the cousin brother of his wife. This
FCA 35/16 15 Judgment
witness stated that he had personally witnessed the behaviour of the wife
and had found the wife to be a quarrelsome lady and that she was
abusing the husband in a filthy language. Wamanrao stated in his
evidence that in the customary meeting that took place in his house on
30.12.2012, he was made aware about the incident dated 22.11.2012
when the wife threw the utensils on the husband because he had
informed Latatai about the wrongful information supplied in the bio-data
pertaining to the age of the wife. Wamanrao was cross-examined and it
was revealed from his cross-examination that his house is at a distance of
eight kilometers from the house of the husband and that he used to visit
the house, four to five times in a week. The witness, however, denied the
suggestion that he had falsely tendered evidence against the wife though
the behaviour of the wife towards the husband and his family members
was proper.
14. Purushottam was examined by the husband in support of
his case. Purushottam stated that he is the friend of the husband and was
regularly visiting the husbands house. This witness also, like Wamanrao,
stated in his evidence that the wife used to abuse the husband and his
father in filthy language and that she had refused to serve tea to the
friends of the husband, including him. This witness stated that he had
witnessed the incident dated 22.11.2012 when the wife angrily came to
the matrimonial home to confront the husband as he had informed
Latatai about the incorrect information supplied to him in respect of the
FCA 35/16 16 Judgment
date of birth of the wife prior to the marriage. Purushottam stated in his
evidence that the wife became so furious on 22.11.2012 that she threw
utensils on the husband and also threatened him that she would commit
suicide. It is stated by Purushottam that the wife was reluctant to go to
the matrimonial home in the meetings held on 30.12.2012 and
05.05.2013. Purushottam admitted in his cross-examination that the
husband was his childhood friend and that he cannot assign any reason as
to why he did not mention the dates on which the wife quarreled with the
husband and abused him. Purushottam, however, denied the suggestion
that the incident dated 22.11.2012 did not take place in his presence and
he had falsely deposed about the same.
15. Sangita was examined by the husband mainly to substantiate
his case that Aruna, the sister of the wife, had given the bio-data of the
wife in her own handwriting to Snehal, the niece of Sangita, in which the
date of birth of the wife was mentioned as 15.08.1980 though the date of
birth of the wife was 14.08.1975. Sangita was cross-examined on the
statements made by her in this regard in her evidence on affidavit but,
she denied the suggestions.
16. The wife tendered the evidence to brush aside every adverse
allegation made by the husband against her. The wife stated in her
evidence on affidavit that she was willing to join the company of the
husband and a decree of restitution of conjugal rights be passed as she
FCA 35/16 17 Judgment
had not treated the husband with cruelty. The wife was cross-examined
by the husband and the wife admitted in her cross-examination that she
had given her original educational documents to the husband for the
purpose of marriage registration and in the documents, her date of birth
was mentioned as 14.08.1975. The wife denied the suggestion that she
refused to take care of the elder sister of the husband who was admitted
in the nearby hospital for her delivery. The wife admitted that she was
taken to Lata Mangeshkar Hospital and to the hospital of Dr.Vaidya after
she was pregnant. The wife further admitted that Dr.Vaidya had not
disclosed about the sex of the foetus and the wife did not remember
whether she had undergone the sex determination test during pregnancy.
The wife admitted that she had never served any notice or
communication on the husband expressing her desire to resume
cohabitation. The wife admitted that during the period of her stay in the
matrimonial home, the parties did not cohabit happily.
17. The wife also examined her real brother, Vikas, to prove that
the husband had left the company of the wife and was not happy with her
because she had given birth to a girl child. It was stated by Vikas in his
examination-in-chief that the husband had informed the wife that she
should abort the child in the womb or else the marriage between the
parties should be dissolved by a decree of divorce. Vikas was cross-
examined on behalf of the husband. He admitted in his cross-
examination that Snehal, the niece of Sangita, was serving as a teacher in
FCA 35/16 18 Judgment
Saraswati Vidyalaya and that there was a meeting between the parties
and the elders on 30.12.2012 and 05.05.2013 but, he did not take his
sister, the wife, to her matrimonial home after the said meetings.
18. On a reading of the evidence tendered by the parties, it
appears that the husband is successful in proving that the wife had
treated him with cruelty. It is not in dispute that the husband is a
graduate and the wife is a post graduate and also possesses B.Ed.
qualification. According to the husband, who is admittedly born in the
year 1975, the wife and her family members had wrongly depicted before
the solemnization of the marriage that the wife was born in the year 1980
though she was born in the year 1975, just after a couple of months from
the birth of the husband. According to the husband, a great fraud was
played on the husband by the wrongful supplying of the information in
regard to the date of birth of the wife. The husband has produced the
bio-data of the wife which, according to him, is in the handwriting of
Aruna, the sister of the wife. The wife had denied that the said bio-data
was supplied to the husband. The husband has examined Sangita to
prove that the bio-data written in the handwriting of Aruna was supplied
to Snehal, the niece of Sangita, and on the basis of the said bio-data, the
program of attending the house of the parents of the wife with a view to
consider whether there could be a marriage between the parties or not,
was made. Both the parties have tendered certain documents pertaining
FCA 35/16 19 Judgment
to the wife to prove that the date of birth of the wife was depicted as
15.08.1980 at the time of the marriage. The Adhaar Card shows the year
of birth of the wife to be 1975. The identity card issued by the Election
Commission on 05.01.2013 shows the year of birth of the wife to be
1980. In the PAN Card, the date of birth of the wife is recorded as
14.08.1975. In another identity card issued by the Election Commission
of India, in 1995, the wife is shown to be of 18 years of age in the year
1995. In the certificate issued by the Maharashtra Board of Secondary
School Certificate Examination, the date of birth of the wife is recorded as
14.08.1975. In the school leaving certificate, it is shown as 1980. Thus,
there is discrepancy in the date of birth of the wife in the documents,
except some documents which record the date of birth of the wife as
14.08.1975. In all other documents, it is different. In the circumstances
of the case, specially when the husband is an agriculturist and a resident
of a small village, it is necessary to believe the case of the husband that
the wife had depicted that she was born in 1980 and not in the year
1975. An agriculturist living in a small village may not have thought of
marrying a girl, who is of the same age, in an arranged marriage. The
Family Court has refused to believe the case of the husband in regard to
the incorrect mentioning of the date of birth by the wife before the
marriage, solely on the ground that the bio data, that was tendered by the
husband on record was not proved by him in the course of evidence and
that he had failed to examine Latatai, who was the mediator. The Family
FCA 35/16 20 Judgment
Court has disbelieved the evidence of Sangita on this aspect only on the
ground that according to the husband, she was not the mediator and her
sister, Latatai, was the mediator in the settlement of the marriage between
the parties. It appears from the various identity cards that are placed on
record that though the year of the birth of the wife is recorded as 1975 in
some documents, in some others, it is recorded as 1980 and an old
election card of the year 1995 that was prepared by the wife herself
shows that the wife had informed that she was born in the year 1976-77.
19.
It would be necessary to consider whether the husband is
successful in proving the allegations levelled by him against the wife. The
husband had stated in his examination-in-chief that the wife was very
egoistic and always boasted about her higher education and qualifications.
The husband had stated in his evidence on affidavit that the wife was not
satisfied with the meager income of the husband from 2.5 to 3 acres of
land and she always abused the husband in respect of the same. The
husband had stated in his evidence that the wife was always unwilling to
do the routine household work, though the husband did not have a
mother and the wife was informed even before the marriage that she
would be required to do the household duties. There is no cross
examination of the husband on his allegation that the wife always abused
the husband and his father and uncle and called them beggers. In respect
of the other allegations levelled by the wife against the father and uncle
of the husband, there is nothing in the cross-examination of the husband
FCA 35/16 21 Judgment
to disbelieve his case in the examination-in-chief. There is no cross-
examination whatsoever in respect of the incident dated 22.11.2012,
when according to the husband, the wife came to the matrimonial home
in a fit of rage as the husband had informed Latatai about the correct date
of birth of the wife and when the husband informed her that it was
necessary for him to tell the mediator about the correct date of birth of
the wife, she was so furious that she threw the utensils on the husband in
a fit of anger and also threatened him that she would commit suicide and
involve him in a false case. The husband and his witnesses Wamanrao
and Purushottam have specifically deposed in regard to the throwing of
the utensils by the wife on the person of the husband in a fit of anger but,
the wife has not cross-examined the husband on this material aspect. To
throw the utensils on the husband in a fit of anger and then threaten him
that she would commit suicide only because he had informed Latatai
about the incorrect mentioning of the date of birth in the bio-data of the
wife to mislead the husband so that he should enter into a wedlock with
her, would amount to cruelty if considered along with the other
unchallenged evidence of the husband in regard to non-performance of
the matrimonial duties by the wife, calling the husband and his father as
beggers, boasting about her higher education and abusing the husband
for the meager income received by him from the agricultural field. The
Family Court should have considered the unchallenged evidence of the
husband to hold that the wife had treated him with cruelty but, in stead
FCA 35/16 22 Judgment
of considering and discussing the evidence of the husband that remained
unchallenged, the Family Court assumed that the wife must have been
doing the entire household work as she was the only woman in the
matrimonial home. Even if a married woman is the only woman in the
matrimonial home, it is not necessary that she would do all the household
work and perform the matrimonial duties. The Family Court has
erroneously discarded the evidence of the husband that the wife refrained
from doing the household work, only on the ground that she was the only
woman in the matrimonial home and it was not the case of the husband
that he had engaged a maidservant to do the household work like
cooking, cleaning utensils, etc. If the reason recorded by the Family
Court for rejecting the evidence of the husband on this aspect is upheld,
in no matrimonial matter where the wife is the only woman in the family
of the husband and his joint family, the husband can prove that the wife
had refrained from doing the household work like cooking, cleaning
utensils, etc. The Family Court erroneously observed that the wife must
not have treated the husband badly because he did not earn much as an
agriculturist as she knew before the marriage, that was performed with
her consent that he was an agriculturist. The Family Court has
erroneously discarded the evidence of Wamanrao and Purushottam on the
ground that it is word to word same. We have perused the evidence of
Wamanrao and Purushottam in their examination-in-chief. The evidence
of these two witnesses is not identical. In fact, Wamanrao states in his
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evidence about the knowledge in regard to the incident dated 22.11.2012
in the meeting that was conducted on 30.12.2012 and Purushottam has
stated in his examination-in-chief that he has personally witnessed the
incident dated 22.11.2012 when the wife threw the utensils on the
husband and threatened him that she would commit suicide, because the
husband had informed Latatai in regard to the incorrect information
about the date of birth of the wife, before the marriage. Only because
both these witnesses had stated that the wife did not treat the husband
properly and that she had refused to do the household work and also that
she had quarreled with the husband in their presence and has refused to
serve tea to them, the Family Court has observed that the evidence of
these two witnesses is identical and word to word same. We find that the
evidence of these witnesses is not word to word same and the cross-
examination of these witnesses is also different. We are surprised that the
Family Court discarded the evidence of Wamanrao on the ground that it
was not possible to believe his case that he visited the matrimonial home
four to five times during the week though his house was eight kilometers
away from the house of the husband. It is difficult to believe as to why it
would not be possible for one relative to go to another relative, who is
living at a distance of eight kilometers away from his house, several
times. Since Wamanrao and the husband were related to each other, it is
possible that Wamanrao went to the house of the husband, who lives
eight kilometers away, very often. The observation of the Family Court
FCA 35/16 24 Judgment
that it was difficult to believe the evidence of these witnesses as they
would not have attended the husbands house so often, specially when the
wife refused to serve them tea, is not worthy of acceptance. The Family
Court has not appreciated the evidence tendered by the parties in the
right perspective and has discarded the evidence of the husband for
reasons that cannot be appreciated. The Family Court has failed to
consider that though it was the case of the wife that the husband started
treating the wife badly from 04.09.2012, after they returned from
Dr.Vaidya's clinic as the wife was carrying a female foetus, the wife had
admitted in her cross-examination that she is not aware whether a sex
determination test was performed during her pregnancy. The wife had
admitted in her cross-examination that Dr.Vaidya had not disclosed about
the sex of the foetus. If that be so, there was no reason for the wife to
level an allegation that the husband started behaving badly with her as
soon as he had realized after attending the clinic of Dr.Vaidya on
04.09.2012 that the wife was carrying a female foetus in her womb and
not a male foetus. The wife has also admitted in her cross-examination
that the parties did not cohabit happily in the matrimonial home during
her short stay in the matrimonial home. The Family Court failed to
appreciate that the wife had never issued any communication or notice to
the husband after the parties separated on 22.11.2012 that she desired to
live with him under one roof in the matrimonial house. In the
circumstances of the case, the Family Court should have accepted the
FCA 35/16 25 Judgment
unchallenged evidence of the husband and his witnesses to hold that the
wife had treated the husband with cruelty. The Family Court has illegally
discarded the evidence of the husband on the ground that the wife was
the only woman in the family and hence she must be doing the entire
household work, that the wife was ready to marry the husband who was
an agriculturist and hence she would not have complained about his
meager income from agriculture. The Family Court was not justified in
discarding the evidence of Wamanrao and Purushottam by erroneously
observing that their evidence was word to word same and it is not
possible that they would visit the house of the husband though the wife
refused to serve them tea. The Family Court has failed to consider the
evidence of the husband about the incident dated 22.11.2012 when the
wife threw the utensils on the husband and threatened him that she
would commit suicide. There is no reference to the evidence of the
husband in regard to the incident dated 22.11.2012, much less a
discussion about the same, though Wamanrao and Purushottam had also
deposed about the same. The Family Court should have accepted the
unchallenged evidence of the husband in regard to the incident dated
22.11.2012 and also the evidence in regard to the dissatisfaction of the
wife about the meager income of the husband and that the wife was not
willing to do the daily duties of cooking, cleaning the utensils and other
miscellaneous work on the ground that she was much more educated
than the husband. The Family Court also failed to consider that it was
FCA 35/16 26 Judgment
not likely that an agriculturist in a small village would marry a woman of
the same age. On the basis of the evidence tendered by the husband,
specially the documents, it was necessary to believe the case of the
husband that the wife had informed her date of birth to be 15.08.1980
before the marriage though the date of birth of the wife was 14.08.1975.
The submission made on behalf of the wife that the husband had falsely
alleged that the wife had levelled false allegation against his father on
28.03.2013 though on that very day the wife had delivered the child and
hence the evidence of the husband needs to be discarded, cannot be
accepted. Merely because a wrong date is mentioned, the entire evidence
cannot be discarded. We find that the husband had examined three
witnesses and it also cannot be said that the husband's case is liable to be
dismissed as he had not examined his father. The Family Court has
erroneously appreciated the evidence on record to dismiss the petition
filed by the husband and allow the petition filed by the wife for
restitution of conjugal rights. The judgment reported in II 2008 DMC
278 (C.R. Chenthilkumar Versus K. Sutha) and relied on by the counsel
for the wife cannot be made applicable to the case in hand. On an
appreciation of the evidence on record, we find that the wife had treated
the husband with cruelty and the husband was entitled to a decree of
divorce under section 13(1)(ia) of the Hindu Marriage Act. Consequently,
the Family Court ought to have dismissed the petition filed by the wife for
the restitution of conjugal rights.
FCA 35/16 27 Judgment
20. Hence, for the reasons aforesaid, the family court appeal is
allowed. The judgment of the Family Court dated 29.10.2015 is set aside.
The petition filed by the husband for a decree of divorce is allowed. The
marriage solemnized between the parties on 23.06.2012 stands dissolved
by a decree of divorce under section 13(1)(ia) of the Act. The petition
filed by the wife for restitution of conjugal rights is dismissed. No costs.
At this stage, a request is made by the learned counsel for the
wife for staying this judgment for a period of eight weeks. The request is
just and reasonable.
We therefore stay this judgment for eight weeks only. Order
accordingly.
JUDGE JUDGE
APTE
