Bombay High Court
Sau. Sarika W/O Sachin Palsokar vs Sachin S/O Suresh Palsokar on 15 September, 2016
Bench: V.A. Naik
FCA 344/14 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL No. 344/2014
WITH
CROSS OBJECTION NO.15/2012
Sau. Sarika W/o. Sachin Palsokar,
aged 32 years, Occ. : Household,
R/o. C/o. Vasantrao Pimpalkar,
102, Sai-Prasad Apartments, Revti
Nagar, Besa, Nagpur. APPELLANT
.....VERSUS.....
Sachin S/o. Suresh Palsokar,
aged 36 years, Occ. : Service,
R/o. Sahajivan flats - 2, in front of
LAD College, Shivaji Nagar, Nagpur. RESPONDENT
Mrs. T.D. Khade, counsel for the appellant.
Shri A.V. Khare, counsel for the respondent.
CORAM :SMT.VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
DATE : 15 TH
SEPTEMBER, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)
By this Family Court Appeal, the appellant challenges the
judgment of the Family Court, Nagpur dated 20.12.2011 allowing a
petition filed by the respondent for a decree of divorce under Section
13(1)(i-a) of the Hindu Marriage Act, 1955. In the First Appeal filed by
the appellant, the respondent has filed a Cross Objection for seeking the
custody of the minor child as the Family Court has held that the custody
of the minor child, would remain with the appellant.
FCA 344/14 2 Judgment
2. Few facts giving rise to this Family Court Appeal and the
Cross Objection are stated thus :-
The appellant-wife (hereinafter referred to as 'the wife' for the
sake of convenience) and the respondent-husband (hereinafter referred to
as ' the husband') were married at Nagpur as per the Hindu rites and
custom on 20.02.2009. A son by name Anvesh was born from the
wedlock on 13.10.2009. The husband and the wife belong to highly
educated middle class families and the wife was made aware before the
solemnization of the marriage that she would be required to stay in the
matrimonial home along with the parents of the husband. After the
marriage, the wife started residing in the matrimonial home at Nagpur.
The husband had taken the wife to Kerala after the marriage was
solemnized and from the inception of the marriage, the husband found
that the wife was behaving strangely. It is stated by the husband in the
Hindu Marriage Petition filed by him for a decree of divorce that the wife
continued to behave badly with the husband and his parents though they
tried to keep her happy. It is pleaded that the wife used to lose her
temper on petty matters and used to shout on the parents of the husband.
It is pleaded that the wife always threatened the husband and his parents
that she would commit suicide. It is pleaded that the wife insisted that
the husband should reside separately in a nuclear family. It is pleaded
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that the husband suffered mental trauma due to the quarrelsome, rude
and insulting behaviour of the wife. It is pleaded that the wife did not
contribute in the household work. It is pleaded that the father of the
husband wrote a letter on 28.06.2009 to the father of the wife about her
whimsical behaviour. It is stated that the father of the wife acknowledged
the goodness of the husband and his parents and promised to advise his
daughter. It is pleaded that Anvesh was a slow learner and required great
care and attention. It is stated that after the birth of Anvesh there was no
change in the behaviour of the wife and she constantly threatened the
husband to leave the matrimonial home and commit suicide. It is pleaded
that the wife also threatened the husband that she would throw and harm
Anvesh. It is pleaded that the wife needed medical treatment from a
Psychiatrist but, she was not ready to take treatment. It is pleaded that
on 24.05.2010, the wife left the matrimonial house along with Anvesh,
with an assurance that she would take medical treatment and join the
company of the husband but, she did not do so. It is pleaded that on the
same day, the wife swallowed tablets and called the police, her parents
and Smt. Mrunal Dani, and all of them advised her to behave properly
and to take medical treatment. It is pleaded that as the police had visited
the matrimonial house, the mother of the husband suffered a heart attack.
It is pleaded that on 17.06.2010, when the husband and the wife were
returning from the hospital of Dr. Bhole where Anvesh was being treated,
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the wife started behaving erratically. It is pleaded that the child was kept
on the floor of the house and the wife went near the well, stood on the
brick-skirt of the well and threatened that she would commit suicide if the
husband does not behave as per her wishes. It is pleaded that the wife
threatened the husband to throw the son in the well and asked the
husband to take both of them to the matrimonial home. It is pleaded that
the parents of the wife brought her into the house with great efforts. It is
pleaded that the husband apprehended that the wife would go to any
extent to harass the husband and his parents and may also harm Anvesh
to implicate the husband or his family members in a false criminal case.
While seeking the decree of divorce on the aforesaid allegations, the
husband also sought the custody of Anvesh, who was aged about 2-3
years at the relevant time.
3. The wife filed the written statement and denied the claim of
the husband. The wife denied all the adverse allegations levelled by the
husband against her. The wife pleaded that the husband had differences
with the wife on trivial issues. It is pleaded that due to the short temper
of the parents of the husband, it was difficult for her to stay in the
matrimonial home, along with them. The wife pleaded that she was
required to return to her parental home in view of the ill-treatment meted
out by the parents of the husband to her. It is pleaded that the father of
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the husband wrote a note in his own handwriting and compelled the wife
and her father to sign the same. It is pleaded that the wife was forcibly
asked to sign on the documents that recited that she would behave
properly with the husband and his family members after she returned to
the matrimonial home. It is pleaded that due to the threat of the husband
and his parents, the wife and her father had signed on a document that
recited that the wife would behave well with her husband and his
parents, after she returned to the matrimonial home. It is pleaded that
the family life of the husband and the wife became miserable only
because of the interference of the parents of the husband. It is pleaded
that the parents of the husband tortured her mentally and assaulted her.
The wife pleaded that the husband used to beat her and the father of the
husband also tried to assault her. It is pleaded that when the husband
and his father tried to beat her, she was required to call the police. It is
pleaded that the wife tried her level best to behave well with the husband
and his family members but they had high expectations. The wife denied
that the husband was entitled to the custody of the minor child at the
tender age of 2-3 years. The wife sought for the dismissal of the petition
filed by the husband.
4. On the aforesaid pleadings of the parties, the Family Court
framed the issues. The husband examined himself and also examined his
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father and Dr.Nilkanth Nimdeokar. The wife examined herself and closed
the evidence on her side. On an appreciation of the evidence on record,
the Family Court, by the judgment dated 20.12.2011, decreed the petition
filed by the husband for divorce under Section 13(1)(i-a) of the Hindu
Marriage Act and directed that the custody of Anvesh shall remain with
the wife. Being aggrieved with the part of the judgment granting a
decree of divorce in favour of the husband, the wife has filed this Family
Court Appeal. The husband has filed the cross-objection, seeking the
custody of Anvesh, as according to the judgment of the Family Court, the
custody of Anvesh was to remain with the wife.
5. Mrs. Khade, the learned counsel for the wife, submitted that
the Family Court was not justified in granting a decree of divorce in
favour of the husband. It is stated that the wife behaved well with the
husband and her in-laws but, they did not treat her well. It is submitted
that the husband has failed in proving that the wife used to frequently
quarrel with the husband and threaten the husband and his parents that
she would commit suicide. It is submitted that the wife desired to live in
the matrimonial home and, therefore, she had signed the document that
recited that she would behave properly with the husband and his parents,
if she was permitted to reside in the matrimonial home. It is stated that
the said document was signed by the wife and her father under pressure
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and, hence, the same could not have been relied on by the Family Court
for holding that the wife was not behaving well with the husband and her
in-laws. It is stated that on a number of occasions, the husband and his
parents had threatened to beat the wife and, therefore, she was
constrained to call the police. It is stated that the Family Court has not
appreciated the evidence of the parties in the right perspective while
holding that the wife had treated the husband with cruelty and he was
entitled to a decree of divorce under Section 13(1)(i-a) of the Act. It is
stated that the Family Court has rightly directed that the custody of
Anvesh should remain with the wife as Anvesh needs the care, love and
affection of a mother, at the tender age. It is stated that since Anvesh was
aged about two years and since the custody of a minor child below five
years should ordinarily be with the mother, the Family Court had rightly
granted the custody of Anvesh, to the wife. It is submitted that the
husband works with the H.D.F.C. as a senior officer and, hence, he would
not be able to take proper care of Anvesh, who is now seven years of
age.
6. Shri Khare, the learned counsel for the husband, supported
the judgment and decree of the Family Court for divorce under Section
13(1)(i-a) of the Act. It is stated that the Family Court has rightly relied
on the admissions of the wife in the cross-examination to grant a decree
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of divorce after holding that the wife had treated the husband with
cruelty. It is stated that though the wife had levelled serious allegations
against the husband and his parents in the written statement, she had
admitted in her cross-examination that the parents of the husband had
not demanded any dowry and her mother-in-law used to cook the food in
the morning and she used to cook the food in the evening. It is stated
that the mother of the husband was a working woman and she used to be
out of the house for work from 10.30 a.m. till 4.30 p.m. It is stated that
the Family Court has rightly held that reckless allegations were levelled
by the wife against the husband and his family members. It is stated that
the wife had admitted that when her mother-in-law had only asked her as
to why she had cooked the vegetable (curry) in the evening when
sufficient vegetable that was cooked in the morning was available, she
became angry and had slept empty stomach and also did not have her
lunch on the next day. It is stated that the wife had admitted that in the
evening, on the next day, she had called a tiffin from outside for dinner as
she was angry with her mother-in-law. It is stated that the wife had
admitted that she had destroyed the picture-poster of a baby that was
affixed on the wall when there was a big quarrel between herself and the
husband. It is stated that the wife had admitted that her father had
bought a stamp paper (Exhibit 51) and she had signed on the said stamp
paper, wherein she had written in her handwriting that she would behave
FCA 344/14 9 Judgment
well with her in-laws, if she was permitted to reside in the matrimonial
home. It is stated that the wife had admitted that she had called the
police in the matrimonial home. It is stated that the wife had also
admitted that she was standing near the well, as pleaded by the husband.
It is stated that the wife had admitted that on 01.10.2010, she had gone
to the housing society, where the husband resides and that she had lived
for one night in the house of one Shri Deshpande. It is stated that in the
circumstances of the case and in the face of the admissions of the wife in
her cross-examination, the Family Court was justified in granting a decree
of divorce in favour of the husband on the ground of cruelty.
7. The learned counsel for the husband submitted that Anvesh is
a slow learner and since he is seven years of age now, the custody of
Anvesh may be given to the husband. It is submitted that considering the
nature and the temperament of the wife, as could be gauged from her
cross-examination, in the interest of Anvesh, the custody of Anvesh
should be given to the husband. It is stated that when the wife is in a bad
mood, she does not send Anvesh to the school or to the coaching classes
meant for the slow learners. It is stated that during the pendency of the
Family Court Appeal, the husband is dropping Anvesh to the school in the
morning and is picking him up in the evening and reaching him to the
wife. It is stated that though the custody of Anvesh is with the wife,
FCA 344/14 10 Judgment
during the working days of the week, i.e. from Monday to Friday, in terms
of the agreement between the parties, as recorded by this Court in the
order dated 21.09.2013, the husband voluntarily performs the duty of
dropping Anvesh to the school and the classes and reaching him back to
the wife's residence on all the school days. It is stated that the husband is
paying a sum of Rs.10,000/- per month (i.e. Rs.6,000/- for the wife and
Rs.4,000/- for Anvesh) apart from all other expenses that are borne by
the husband for the education and the speech and development
therapy of Anvesh. It is stated that the husband would continue to pay a
sum of Rs.10,000/- to the wife even if this Court grants the custody of
Anvesh to the husband. It is stated that in terms of the settlement that
was executed between the parties on 19.09.2013 and recorded in the
order dated 21.09.2013, the husband used to have the access to Anvesh
from Friday evening to Monday morning but, the said access is extremely
short. It is stated that in the changed scenario, this Court may grant the
custody of Anvesh to the husband. It is stated that the wife is living all
alone and separately in a rented house and it is admitted by the wife in
her cross-examination that her brother had threatened to kill Anvesh and
in this background, it would not be in the interest of justice to permit the
wife to retain the custody of Anvesh.
FCA 344/14 11 Judgment
8. On hearing the learned counsel for the parties and on a
perusal of the Record & Proceedings, it appears that the following points
arise for determination in this Family Court Appeal.
I) Whether the husband is successful in proving that the wife
had treated him with cruelty and whether he is entitled to a
decree of divorce under Section 13(1)(i-a) of the Hindu
Marriage Act ?
II) Whether the husband is entitled to the custody of Anvesh
and/or the wife is entitled to the custody as per the judgment
of the Family Court ?
III) What order?
9. To answer the aforesaid points, it would be necessary to
consider the pleadings of the parties and the evidence tendered by them.
It would not be necessary to reiterate the pleadings as we have narrated
the pleadings in detail, in the earlier part of this judgment.
10. The husband had examined himself and reiterated the facts
stated by him in his pleadings. The husband was not cross-examined at
length. In his cross-examination, the husband admitted that the wife
FCA 344/14 12 Judgment
resided with him in short spells. The husband admitted in his cross-
examination that the normal voice of the wife was very loud but, that was
not the reason for feeling that she was quarreling when she was talking
normally. The husband admitted that his gross salary is Rs.40,000/- per
month. There were no suggestions to the husband in regard to the
allegations made by him against the wife in respect of the cruel treatment
meted out by her to the husband and his parents. The husband had
stated in his examination-in-chief that the wife was behaving strangely
and erratically and though she was asked not to shout and speak softly,
she used to give threats to him and his parents. Though the husband had
stated in the examination-in-chief that the wife would threaten the
husband and his parents that she would commit suicide, there is no cross-
examination of the husband on the said allegation. The husband had
stated in his examination-in-chief that the wife had written on the
document at Exhibit 51 that she would mend her ways and behave well
with the husband if she was permitted to live in the matrimonial home
and the husband was not cross-examined on the said statement. The
husband had stated in his examination-in-chief that the wife had gone to
a well, stood on the brick-skirting of the well on or about 17.06.2010 and
threatened to commit suicide if the husband does not behave as per her
wishes and there is no cross-examination of the husband in this respect.
The husband had stated in his examination-in-chief that with great
FCA 344/14 13 Judgment
efforts, the wife was pulled away from the well but, the husband was
under a constant threat that the wife would either try to harm herself or
Anvesh, if the things did not go her way. Though the husband had
pleaded the aforesaid facts in his petition and had also tendered evidence
on affidavit reiterating the facts in the pleadings, there is no cross-
examination of the husband on the said facts. In the absence of cross-
examination, the Family Court has rightly believed the case of the
husband. Apart from the husband, the husband had examined his father
and also Dr.Nilkanth Nimdeokar. The evidence of the father of the
husband and the doctor supported the case of the husband. Apart from
the fact that the evidence of the husband went unchallenged, the Family
Court has rightly relied on the admissions of the wife in her cross-
examination to hold that the husband has proved that the wife has
treated the husband with cruelty and he is entitled to a decree of divorce.
Though the wife had stated in her evidence that her in-laws had harassed
her and also assaulted her on certain occasions, the wife did not prove the
said fact by tendering cogent evidence. In fact, the wife admitted in her
cross-examination that her in-laws had never demanded dowry, that her
mother-in-law was in service, that she used to go out for work from 10.30
a.m. till 4.30 p.m., that the mother-in-law used to cook food in the
morning and that she used to cook the food in the evening. The wife had
admitted that her elder brother used to ill-treat her and had even
FCA 344/14 14 Judgment
threatened to kill Anvesh. The wife had admitted in her cross-
examination that she was aware before the marriage that her husband
was the only son of his parents and that she would be required to live in a
joint family. The wife admitted that when her mother-in-law asked her as
to why she had cooked the vegetable in the evening when there was
sufficient cooked vegetable available, she became angry and had slept
empty stomach and also did not have her lunch on the next day. The wife
admitted that in the evening on the next day, she had called a tiffin from
outside for dinner as she was angry with her mother-in-law. The wife
admitted that her father had come to the matrimonial home and had
given her an understanding that she should behave properly with the
husband and her in-laws. The wife admitted that her father had told her
in-laws that the wife was hot tempered. The wife admitted that she
assured her father that she would behave properly with the husband and
her in-laws. The wife further admitted that she had torn the poster-
picture of a baby that was affixed on a wall in her bedroom. The wife
admitted that she had written on a stamp paper (Exhibit 51) that she
would behave well with her husband and her in-laws in future and that
her father had bought that stamp paper and that the contents of the
stamp paper were written in her handwriting and that she had signed the
same. The wife had admitted that when there was a quarrel between the
husband and the wife on 24.05.2010, she had called the police from her
FCA 344/14 15 Judgment
cellphone. The wife had admitted that she was standing near the well as
stated by the husband but, that was not for the purpose of committing
suicide. The wife admitted that on 08.09.2011, i.e. after the separation,
she had called the husband, in his office that Anvesh had fallen down and
had a bump on his head with a bleeding injury but, she did not take
Anvesh to the doctor. The wife had admitted that she had been to the
housing society where her husband resides and lived in the night in the
house of one Shri Deshpande and had called the tiffin for Anvesh from
her in-laws. From the aforesaid admissions of the wife, it is clear that the
wife had treated the husband with cruelty. In this case, the evidence of
the husband has remained unchallenged. The evidence of the husband is
supported by the evidence of the witnesses examined by him. Apart from
the fact that the evidence of the husband has remained unchallenged, the
admissions of the wife in her cross-examination have further proved that
the wife had treated the husband with cruelty. The wife had made
reckless allegations against the husband and her in-laws in regard to the
ill-treatment meted out to her including the physical violence but, she has
failed to prove the same by leading cogent evidence. In fact, the wife had
admitted in her cross-examination that her in-laws had never demanded
dowry, that her mother-in-law used to be out of the house from 10.30
a.m. till 4.30 p.m. as she was in service, that her mother-in-law used to
cook the food in the morning and that she was required to cook the food
FCA 344/14 16 Judgment
in the evening. The wife had admitted that when her mother-in-law
casually asked her as to why she had prepared the vegetable in the
evening when the vegetable cooked in the morning was remaining and
was sufficient for the family, for dinner, the wife became so angry that
she had slept empty stomach that night, did not have her lunch on the
next day, and had called for a tiffin for her, for the dinner on the next
day. The admissions of the wife clearly show that she was extremely hot
tempered and she used to make a big issue of trifle matters. The
allegations made by the husband in regard to the eccentric nature and
temperament of the wife are proved by the husband not only by his
evidence, that has gone unchallenged but, also by the admissions of the
wife in her cross-examination. The wife has admitted that she was
standing near the well but, she stated that that was not for the purpose of
committing suicide. We believe the case of the husband that the wife was
threatening the husband that she would commit suicide. The wife was
eccentric and the fact that the wife was standing on the brick-skirting of
the well, shows that the wife threatened the husband that she would
commit suicide. The allegations made by the husband in this regard have
been proved by the husband by tendering cogent evidence, that has
remained unchallenged. There is no cross-examination of the husband on
this aspect from the side of the wife. It is proved by the husband from his
evidence as well as the evidence of the wife in her cross-examination that
FCA 344/14 17 Judgment
the wife was treating the husband with cruelty. The Family Court has
rightly held that the wife was not behaving properly with the husband
and her in-laws, or else there was no occasion for her to prepare the
writing on the stamp paper, Exhibit 51, that she would behave well with
the husband and the in-laws, in future. The act on the part of the wife to
remain without food for more than a day, when she knew that she was
pregnant, the act on the part of the wife to call the police in the
matrimonial home, the act on the part of the wife to tear the baby poster
after a fight, the act on the part of the wife to stand on the skirting of the
well to threaten the husband, the act on the part of the wife to threaten
the husband to commit suicide, the insistence on the part of the wife to
stay away from his old in-laws and the writing by the wife that she would
behave well in future, show that the wife treated the husband with
cruelty. The cumulative effect of the acts on the part of the wife of
becoming angry on trifle matters, threatening the husband to commit
suicide and attempting to commit the same by standing near the well
surely tantamounts to cruelty. It would be difficult for any husband to
live with the wife, who continuously gets flared up on trifle issues and
threatens to commit suicide or injure the minor child. The Family Court
has rightly held that it was clear from the oral and the documentary
evidence on record that the wife had treated the husband with cruelty
and that he was entitled to a decree of divorce on the said ground.
FCA 344/14 18 Judgment
11. Having held so, it would be necessary to consider as to who
would be entitled to the custody of Anvesh. The wife has admitted in her
cross-examination that her brother had threatened to kill Anvesh. She
had also admitted in her cross-examination that though on 08.09.2011,
she had telephoned the husband that Anvesh had a fall and had a bump
on his head with a bleeding injury, she did not take Anvesh to a doctor.
Though the aforesaid admissions on the part of the wife would result in
recording a finding that the wife was not taking proper care of Anvesh,
we are not inclined to permit the husband to have the custody of Anvesh
in the entirety. It is not in dispute that the husband is paying a sum of
Rs.10,000/- to the wife and Anvesh and also paying the school fees, fees
for the speech and development therapy and is bearing the other
expenses for Anvesh. It is fairly stated on behalf of the husband that even
if the custody of Anvesh is granted to the husband, the husband would
still continue to pay a sum of Rs.10,000/- to the wife. We have found
from the evidence of the husband and the statements made on his behalf
in this Court at the time of hearing that the husband is conducting himself
as a good father and is also desirous of giving a substantial amount to the
wife towards her maintenance. It is also not disputed by the counsel for
the wife that the husband used to drop and collect Anvesh from the
school and the coaching classes, even after the parties had decided to
share the custody-access to Anvesh, as per the terms of settlement,
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executed on 19.09.2013. The husband and the wife had agreed in terms
of the interim settlement that Anvesh would be in the custody of the wife
from Monday to Friday and from Friday evening to Monday Morning, the
custody-access of Anvesh would be with the husband. We find that the
custody of Anvesh is given to the wife by the Family Court only because
the custody of a child should normally remain with the mother, if the
child is below five years of age. Now, Anvesh is seven years of age and in
the circumstances narrated hereinabove, it would be necessary in the
interest of justice to permit the husband to have the custody of Anvesh for
some more time during the school days and equally with the wife during
the vacations. In the circumstances of the case, we are not inclined to
grant the custody of Anvesh only to one of the parents as the child is a
slow learner, and in our view, both the parents should be able to shower
their love and affection on Anvesh so that the child remains attached with
both of them.
12. The terms of settlement executed between the parties on
19.09.2013 as an interim arrangement have worked to a great extent and
in the circumstances of the case, we direct that the custody of Anvesh
would be with the husband from Friday evening (after the School hours)
till Tuesday morning, when Anvesh would be dropped to the school. It is
needless to mention that the wife would have the custody of Anvesh from
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Tuesday evening (after the School hours) till Friday evening. We have
arrived at this arrangement, with a view to give equal opportunity to both
the parents to spend time with Anvesh who is just seven years of age
and is a slow learner. The husband may continue to drop Anvesh to the
school and classes and bring him back to the house of the wife even when
Anvesh would be in the custody of the wife. During the vacations, the
custody of Anvesh should be shared equally by the husband and the wife,
that is to say that, if the vacations are for a period of twenty two days,
Anvesh would remain with each of the parents for eleven days. This
arrangement would apply to all the vacations including the Summer, the
Winter and the Diwali vacations.
13. For the reasons aforesaid, the Family Court Appeal is
dismissed. The cross-objection is allowed in terms of the directions in
paragraph 12 of the judgment. In the circumstances of the case, there
would be no order as to costs.
JUDGE JUDGE
Deshmukh/APTE
FCA 344/14 21 Judgment
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