Shri Sunil S/O Ganesh Hiranwar vs Smt. Beena W/O Sunil Hiranwar
2016 Latest Caselaw 5391 Bom

     1909fcas137,146.14-Judgment                                                                  1/21


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                              
                            NAGPUR BENCH, NAGPUR.




                                                                    
                     FAMILY COURT APPEAL  NO. 137  OF    2014


     APPELLANT :-                         Shri Sunil s/o Ganesh Hiranwar, Aged about




                                                                   
                                          37 years, Occ- Service, R/o Plot No.57, RBI
                                          Housing Society, Near Jagruti Colony, Katol
                                          Road, Nagpur-440 013. 

                                             ...VERSUS... 




                                                   
     RESPONDENT :-             ig         Smt. Beena w/o Sunil Hiranwar, aged about
                                          33   years,   R/o   C/o   Balram   Kataria,   Teen
                                          Mundi Chowk, Sadar, Nagpur. 
                             
                                                   AND

                     FAMILY COURT APPEAL  NO. 146  OF    2014
      


     APPELLANT :-                         Shri Sunil s/o Ganesh Hiranwar, Aged about
                                          37 years, Occ- Service, R/o Plot No.57, RBI
   



                                          Housing Society, Near Jagruti Colony, Katol
                                          Road, Nagpur-440 013. 

                                             ...VERSUS... 





     RESPONDENT :-                        Smt. Beena w/o Sunil Hiranwar, aged about
                                          33   years,   R/o   C/o   Balram   Kataria,   Teen
                                          Mundi Chowk, Sadar, Nagpur. 





     ---------------------------------------------------------------------------------------------------
                       Mr.Masood Shareef, counsel for the appellant.
                     Ms Bhavna Meshram, counsel for the respondent.
     ---------------------------------------------------------------------------------------------------

                                            CORAM :  SMT. VASANTI    A    NAIK,
                                                        KUM.INDIRA JAIN, JJ.

DATED : 19.09.2016/20.09.2016

1909fcas137,146.14-Judgment 2/21

O R A L J U D G M E N T (Per Smt. Vasanti A Naik, J.)

By these family court appeals, the appellant-husband has

challenged the common judgment of the Family Court, Nagpur,

dismissing the petition filed by the appellant for a decree of divorce

under Section 13(1) (i-a) and (i-b) of Hindu Marriage Act and allowing

the petition filed by the respondent-wife under Section 9 of the Act for

restitution of conjugal rights.

2. Few facts giving rise to these appeals are stated thus -

The marriage of the respondent-wife (hereinafter referred

to as the 'wife' for the sake of convenience) and the appellant-husband

(hereinafter referred to as the 'husband') was solemnized at Nagpur on

03/12/1999 as per Hindu rites and customs. After the marriage, the

wife started residing with the husband in the matrimonial home. A boy,

named Vishal was born from the wedlock, on 24/09/2000. Since the

parties got separated within a couple of years from the marriage and

since the husband was desirous of seeking a decree of dissolution of

marriage on the ground of desertion and cruelty, he filed Hindu

Marriage Petition No.34 of 2007 seeking a decree of divorce under

Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act. It is pleaded in

the petition filed by the husband that since the inception of the

marriage, the husband treated the wife with love and affection, but the

1909fcas137,146.14-Judgment 3/21

wife failed to discharge her matrimonial obligations. It is pleaded that

the mother of the husband was 60 years of age and in the matrimonial

home, the husband and the wife were residing with the husband's

parents, with his elder brother Anil, younger brother Sushil and their

wives. It is pleaded that the husband was a Supervisor of a contractor

and was required to leave the house at about 9.00 am in the morning

and he returned from work at about 7.00 to 8.00 pm in the evening. It

is pleaded that the husband discovered after the marriage that the wife

was not interested in performing her matrimonial obligations and was

behaving in an incompatible manner. It is pleaded that the wife is used

to frequently visit her parents, without informing the husband and

without his consent or knowledge. It is pleaded that the wife used to

stay with her parents for days together, without caring for the husband

and his family members. It is pleaded that the wife desired to live away

from the joint family in a separate house, but the husband was not

desirous to accede to her request, as the parents of the husband were

old. It is pleaded that as the husband was the only earning member of

the family, he was not in a position to bear the expenses for a separate

residence. It is pleaded that the wife used to pick up quarrel with the

husband for no reasons. It is pleaded that the aforesaid act on the part

of the wife caused mental trauma to the husband. It is pleaded that

when the parents of the wife took the wife to her parental home, she

1909fcas137,146.14-Judgment 4/21

stayed with them till she gave the birth to the male child. It is pleaded

that though the husband had asked the wife to mend her ways, the wife

did not do so. It is pleaded that after the discharge of the wife from

Dhanwantari Hospital where she delivered a male child, she again went

to her parents' house. It is pleaded that even after the birth of the child,

there was no improvement in the behaviour of the wife, when she

returned to the matrimonial home in the month of October, 2000. It is

pleaded that the wife had told the husband that she did not wish to stay

in the company of the husband and wished that the marriage between

the parties be dissolved. It is pleaded that in the second week of March,

2001, the wife left the matrimonial home along with the child, without

the consent of the husband and his family members. It is pleaded that

the parties were residing separately, since the second week of March,

2001 and the husband was entitled to a decree of divorce on the ground

of cruelty and desertion, more so, when the wife had lodged the false

report against the husband and his family members in the Mahila Cell in

the month of November, 2001.

3. The wife filed the written statement and denied the claim

of the husband. The wife admitted the factum of marriage and also

admitted that she had started residing in the matrimonial home after

the marriage and that Vishal was born from the wedlock. The wife

1909fcas137,146.14-Judgment 5/21

admitted that the parties were residing in the joint family of the

husband. It is pleaded by the wife that the husband was working as a

Supervisor with a contractor and also accepting catering contracts. The

wife admitted that the husband used to remain out of the house

throughout the day. The wife pleaded that she had, after the

solemnization of her marriage, taken active interest in all the activities

in the matrimonial home and had discharged her marital obligations.

The wife denied that she had failed to take care of the husband as well

as his old parents. The wife denied that she had asked the husband to

stay away from the joint family with the wife, by securing a separate

accommodation. It is pleaded that the case pleaded by the husband in

this regard is false and concocted. The wife pleaded that the wife was

indeed ill-treated, both physically and mentally, by the husband and his

family members. It is pleaded that the wife tried to reconcile and sort

out the differences, but the husband and his family members did not

respond. It is pleaded that due to the ill-treatment and neglect by the

husband, the wife was required to take shelter in the house of her

parents. The wife denied that she left the matrimonial home on her

own accord in March, 2001 and pleaded that the husband, her mother-

in-law and brother-in-law compelled her to leave the matrimonial home

by abusing her in filthy language. It is pleaded that even after she left

the matrimonial home, she had tried on several occasions to join the

1909fcas137,146.14-Judgment 6/21

company of the husband, but she was not permitted to do so. The wife

pleaded that she had approached the Mahila Cell only with a view to

consider the possibility of a reconciliation between the parties. The wife

sought for the dismissal of the petition filed by the husband. The wife

filed a petition for restitution of conjugal rights. The Family Court

framed the issues in both the petitions and by the common judgment,

dated 26/08/2010, allowed the petition filed by the wife for restitution

of conjugal rights and dismissed the petition filed by the husband for a

decree of divorce. Being aggrieved by the judgment of the Family

Court, the husband has filed two separate appeals.

4. Shri Sharif, the learned counsel for the appellant-husband,

submitted that the Family Court was not justified in dismissing the

petition filed by the husband for a decree of divorce and allowing the

petition filed by the wife for restitution of conjugal rights. It is stated

that the wife had left the matrimonial home without any reasonable

excuse in the month of March, 2001, never to return. It is stated that

the parties are residing separately for nearly fifteen years and in this

background, it would be necessary, in the interest of justice to dissolve

the marriage between the parties by a decree of divorce. It is stated

that the wife has stated in the evidence that she was beaten up by the

husband and his family members though she has not pleaded in this

1909fcas137,146.14-Judgment 7/21

regard. It is stated that though the husband has not specifically pleaded

the particulars in respect of the acts of cruelty by the wife, on an overall

reading of the pleadings and the evidence, it is clear that the wife had

treated the husband with cruelty. It is stated that the wife was

continuously demanding for a separate residence and it was not

possible for the husband to leave his aged parents and reside with the

wife by securing a separate accommodation. It is submitted that the

wife had not desired to join the company of the husband and the case

tried to be made out by the wife in that regard is false and concocted.

The learned counsel relied on the judgment of the Hon'ble Supreme

Court, reported in AIR 2002 SC 88 (Adhyatma Bhattar Alwar v.

Adhyatma Bhattar Sri Devi) to substantiate his submission that the

two elements of desertion, namely the absence of consent and the

absence of conduct giving reasonable cause to the spouse of leaving the

matrimonial home have been satisfied in the present case. The learned

counsel relied on the judgment, reported in (2008) 7 SCC 734 (Satish

Sitle v. Ganga) to substantiate his submission that in the instant case,

the marriage is dead for all practical purposes and the continuation of

such a marriage, of which there is no chance of retrieval, would itself

amount to cruelty. It is stated that, by taking a pragmatic view in the

matter, this Court may allow the petition filed by the husband and

dismiss the petition filed by the wife for restitution of conjugal rights.

1909fcas137,146.14-Judgment 8/21

5. Ms Bhavna Meshram, the learned counsel for the wife

submitted that the Family Court was justified in allowing the petition

filed by the wife for restitution of conjugal right while dismissing the

petition filed by the husband for a decree of divorce on the ground of

cruelty and desertion. It is stated that the husband had not stated any

incidents or given any particulars about the acts on the part of the wife

that could show that she had treated the husband with cruelty. It is

stated that in the absence of specific pleadings in regard to the acts of

cruelty, the Family Court rightly dismissed the petition filed by the

husband for a decree of divorce on the ground of cruelty. It is stated

that on a proper appreciation of evidence on record, the Family Court

has rightly held that the wife had not left the matrimonial home in

March 2001 without any reasonable excuse and she was compelled by

the family members of the husband to leave it. It is stated that in the

circumstances, the appeals are liable to be dismissed.

6. On hearing the learned counsel for the husband and on a

perusal of the original record and proceedings, it appears that the

following points arise for determination in these family court appeals:-

(1) 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?

1909fcas137,146.14-Judgment 9/21

(2) Whether the husband is entitled to a decree of divorce on

the ground of desertion under Section 13(1)(i-b) of the

Hindu Marriage Act?

(3) Whether the wife is entitled to a decree of restitution of

conjugal rights?

(4) What order?

7. 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 already narrated the facts pleaded by the

parties in their respective petitions and the written statements. After

framing of the issues, common evidence was recorded for both the

petitions. The husband had tendered the evidence on affidavit and had

reiterated the facts pleaded by him in the petition for divorce. The

husband was cross-examined on behalf of the wife. The husband

denied the suggestion that 2 to 3 months after the marriage, he had

physically assaulted the wife and she had suffered a bleeding injury to

her nose. The husband denied that the grandfather of the wife was

seriously ill for about 7 to 8 months after their marriage. The husband

stated in his cross-examination that the aforesaid fact was not informed

to the husband when the wife left the matrimonial home two and half

1909fcas137,146.14-Judgment 10/21

months after the marriage, to join her parents. The husband denied

that on 16/04/2001 the husband and his family members had badly

assaulted the wife on the pretext that a box had fallen because of her

lapse. The husband admitted that his brothers Sushil and Anil sold

noodles on handcarts and that they also run a kirana shop. The

husband admitted that his father owned a house in Dharampeth and

also in Friends Colony. The husband denied that his mother used to say

that he was not the father of the child delivered by the wife and,

therefore, they would not arrange any treatment for the child. The

husband admitted that when his son Vishal was about one month and

half quarter of age, the wife returned to him. The husband, however,

denied the suggestion that his mother and his other family members

were annoyed with the wife and that they did not touch Vishal. The

husband further denied that on 19/04/2001, the wife had tried to end

her life because of their torture. The husband admitted that the wife

had lodged a report to the Mahila Cell against the husband and his

family members. The husband denied the suggestion that he did not

attempt to settle the matter and reconcile. The husband admitted that

after the wife started residing with her parents in 2001, he had not

provided any financial assistance to her, except the maintenance

amount, as per the directions of the Court. The husband denied the

suggestion that the petition was false.

1909fcas137,146.14-Judgment 11/21

8. The wife examined herself and also examined Lalchand

Chaudhari, who is related with the wife and was acquainted with the

husband even before his marriage with the wife. The wife reiterated

the statements pleaded in the petition for restitution of conjugal rights

and her written statement in her evidence on affidavit. The wife

additionally stated in her examination-in-chief on affidavit, that she was

physically beaten up by the husband and his family members. In the

cross-examination, the wife admitted that after two and half months

after the marriage, she has started residing in the parental home and

she had joined the company of her husband on 21/10/2000 along with

the child. The wife stated in her cross-examination that she was beaten

by her husband during the period of two months, when she was living

with him. It is surprising that the aforesaid suggestion was given by the

counsel for the husband to the wife, in her cross-examination. The wife

then admitted that there was no mention about the beating by the

husband during the period of two months after the marriage in her

written statement in the petition filed by the husband or in her petition

for restitution of conjugal rights. The wife admitted in her cross-

examination that she was not required to exert much because of the

availability of the servants in her parental home. The wife admitted

that the family of the husband was joint in mess and residence and that

there were no servants employed in the joint family, for doing the work.

1909fcas137,146.14-Judgment 12/21

We are again surprised with the aforesaid suggestion that points out

that the joint family had not engaged any servants for doing the tedious

work of mopping and cleaning, washing utensils and clothes. The wife

admitted that in the house, she and the wife of the elder brother of the

husband namely Ashwini, had to do the entire household work. The

wife denied that because of the compulsion of doing the entire

household work, she did not have good relations with the husband's

mother and Ashwini. The wife denied that she asked the husband to

secure a separate residence for both of them. The wife admitted in her

cross-examination that she had visited the house of the husband more

than 50 times in order to live with the husband in the matrimonial

home, though, she could not recollect the exact days of which she had

visited the matrimonial home. The wife admitted that she had not

issued any notice to the husband till the filing of the petition for

restitution of conjugal rights. The wife denied that she was not desirous

of living with the husband and, therefore, she had not issued the notice.

The wife denied that she had removed all the articles or belonging

while leaving the matrimonial home in March, 2001. The wife denied

that she had lodged the complaint against the husband in the Mahila

Cell after deliberating with her family members. It is denied that since

there was no substance in the complaint, no offence was registered

against the husband. The wife denied that she used to pressurize her

1909fcas137,146.14-Judgment 13/21

husband and his family members on account of richness of her parents.

The wife denied that she was never ready and willing to reside with the

husband. The wife stated in her cross-examination that she had

attempted to return to the matrimonial home several times, but the

husband was not willing. The wife denied that the husband had filed

the petition for divorce only because the parties were not in a position

to reside together in the matrimonial home.

9.

The wife examined Lalchand Chaudhari. The witness

stated that he was related to the wife and was also acquainted with the

husband and his family members. He stated in his evidence that the

mother of the husband, had seen the wife during Ganpati Festival and

she was selected as a bride for the husband. The witness stated that the

wife did not tell him anything about the ill-treatment that was meted

out to her. The witness stated that there was no occasion to talk to the

husband on the said issue, as it was a personal affair between the

parties and the same could have been sorted out at their level.

Lalchand stated that on 19/04/2001, he had seen the wife sitting near

the telephone booth, near RBI Colony and she was disoriented and

crying. It is stated that the wife was not possessing any bags or

belongings at the said time. It is stated that the wife informed him that

her parents-in-laws were not at home and the elder brother of the

1909fcas137,146.14-Judgment 14/21

husband namely Sushil had driven her out of the house. Lalchand

stated that the wife had lodged the report against the husband and his

parents in the month of November, 2001. In his cross-examination,

Lalchand stated that neither the husband nor the wife had told him that

there were disputes between them. He admitted that after 2001, he

had visited the house of the parents of the wife. The witness denied

that the wife was carrying bags, clothes and other belongings on the day

when he saw her at the telephone booth. Lalchand further denied that

the wife's mother had informed him that the husband had driven her

out of the house, on 19/04/2001. He admitted that the mother of the

wife had informed him on the phone that the wife was driven out of

house by the husband. It was stated that when the wife came to his

house, after she left the matrimonial home, she had informed him that

she was driven out of the house by the husband's elder brother. The

witness admitted that he did not make any attempt for reconciliation

between the husband and the wife, on his own.

10. On the appreciation of the aforesaid evidence, the Family

Court held and rightly so, that the husband was not entitled to a decree

of divorce on the ground of cruelty. The Family Court noted that the

allegations made by the husband against the wife, that she was not

discharging the marital obligations, that she was not respecting her in-

1909fcas137,146.14-Judgment 15/21

laws, that she was insisting that the husband should reside with her

separately, that she was behaving in a rude and incompatible manner,

that she was picking up quarrel for no ostensible reason and that she

created an unhealthy atmosphere in the matrimonial home were

general. The Family Court rightly observed that all the aforesaid

allegations were of general nature and no particulars about the acts on

the part of the wife of behaving rudely, quarreling with the family

members, not discharging the marital obligations were specifically

pleaded in the petition filed by the husband. There is nothing in the

petition filed by the husband to show as to when and in what manner,

the wife mentally harassed the husband and his family members. It is

well settled that it would be necessary for the party alleging cruelty

against his/her spouse to give particulars of the events and incidents

that would help in proving that his/her spouse had treated the party

with cruelty. On a reading of the petition filed by the husband, it is clear

that every allegations made by the husband against the wife is general.

Though the husband had pleaded that the wife was leaving the

matrimonial house without informing him and without his consent,

time and again, he had admitted in his cross-examination that the wife

had left the matrimonial home only in the month of March, 2000 and

then in the month of April, 2001. The Family Court rightly observed

that the case sought to be made out by the husband against the wife, of

1909fcas137,146.14-Judgment 16/21

frequently leaving the matrimonial home to join the company of her

parents was untrue. The Family Court observed and rightly so that in

the month of March, 2000 the wife had left the matrimonial home after

she was pregnant and then she had left the matrimonial home in

March-April, 2001. The husband has pleaded that he had tried to bring

back the wife to the matrimonial home. The husband has not

specifically pleaded and stated in his evidence as to when he made the

attempts to bring the wife to the matrimonial home. In the absence of

particulars, it would not be possible to hold on the basis of the general

and vague allegations made by the husband that the wife had treated

the husband with cruelty. The case of the husband that the wife had

insisted for a separate residence is not proved by the husband. On a

reading of the evidence of the husband and the wife, we are inclined to

accept the evidence of the wife, which appears to be more trustworthy.

While holding that the husband failed to prove that the wife had treated

him with cruelty, the Family Court relied on the judgments rendered by

the Hon'ble Supreme Court and the High Courts from time to time. We

do not find that the Family Court has committed an error in holding

that the husband has been unsuccessful in proving that the wife has

treated him with cruelty in the absence of any specific pleadings to

prove the cruelty by the wife. We have already narrated the pleadings

of the husband in detail in the earlier part of the judgment and on the

1909fcas137,146.14-Judgment 17/21

basis of the pleadings of the husband in respect of cruelty by the wife,

which are extremely vague and general, the decree of divorce cannot be

granted in favour of the husband.

11. After having held that the husband has failed to prove

cruelty by the wife, it would be necessary to consider whether the wife

had deserted him and whether he was entitled to a decree of divorce

under Section 13 (1) (i-b) of the Act. In the petition filed by the

husband, the husband has pleaded that in the 2 nd week of March 2001,

the wife had left the matrimonial home without the consent of the

husband and his family members and while leaving the matrimonial

home, she has carried all her ornaments, clothes etc. The husband has

pleaded that the wife was not willing to return to the matrimonial home

despite his efforts. The wife has seriously disputed the allegations made

by the husband, in her Written Statement. It is the case of the wife in

the Written Statement and it is also proved by her through her evidence

that in March, 2001 she had not left the matrimonial home voluntarily,

but she was compelled by the members of the family of the husband to

do so. It would be necessary to consider the evidence of the wife in her

cross-examination. On the suggestion given on behalf of the husband,

the wife has stated in her cross-examination that she had visited the

matrimonial house nearly fifty times in order to live with husband. It

1909fcas137,146.14-Judgment 18/21

appears that the wife has stated so, after a querry was made to her in

her in cross-examination as to how many times she had visited the

matrimonial home with a view to live there. Though the wife did not

recollect the exact dates on which she visited the matrimonial home,

the statement of the wife in her cross-examination that she went to the

matrimonial home on several occasions to reside with the husband

appears to be correct. More weightage would be required to be given to

the aforesaid statement as the statement is brought on record in the

cross-examination of the wife. The wife has further stated in her cross-

examination that she had made several attempts to communicate with

the husband after April 2001, but the attempts went in vain. On a

reading of the evidence of the husband and the wife, the Family Court

rightly came to a conclusion that the wife had not left the house of the

husband in March 2001 without any reasonable excuse and that she

was compelled to leave the matrimonial home due to the relatives of

the husband. The Family Court has observed, on a proper appreciation

of the material on record, that the wife did not leave the matrimonial

home on her own, but the husband's relatives compelled her to leave

and that the husband did not try to ensure that the wife returns to the

matrimonial home. Since the wife had not left the company of the

husband without any reasonable excuse, the Family Court rightly came

to a conclusion that the husband is not entitled to a decree of divorce

1909fcas137,146.14-Judgment 19/21

on the ground of desertion only because the parties were residing

separately for more than three years. The Family Court found that the

wife had intended to return, but the husband did not permit the wife to

return to the matrimonial home. The finding recorded by the Family

Court on the issue of desertion is based on a proper appreciation of

evidence on record and on a rightful consideration of the decisions

rendered by the Honourable Supreme Court and the High Courts the

Family Court held, and in our view rightly so, that the animus deserendi

was not proved as the husband failed to prove that the wife had left the

matrimonial home with an intention to bring cohabitation permanently

to an end and the two elements essential for seeking a decree of divorce

on the ground of desertion, were not satisfied. In our view, the

judgment of the Honourable Supreme Court in the case of Adhyatma

Bhattar Alwar v. Adhyatma Bhattar Sri Devi (supra) and relied on by the

learned counsel for the husband would not support the case of the

husband as the two elements, as laid down by the Honourable Supreme

Court, for proving desertion by the deserted spouse, are not satisfied in

this case. The Honourable Supreme Court has held that to prove

desertion, it would be necessary for the deserted husband to prove the

factum of separation and the intention on the part of the wife to bring

cohabitation permanently to an end. Since the evidence on record

clearly shows that the wife did not intend or desire to bring

1909fcas137,146.14-Judgment 20/21

cohabitation permanently to an end, the husband has been unsuccessful

in proving that the wife had deserted him. The Family Court, therefore,

rightly came to a conclusion, on an appreciation of evidence on record,

that the husband was unsuccessful in proving that the wife had treated

him with cruelty and had deserted him without any just or reasonable

excuse. After having held so, the Family Court was justified in allowing

the petition filed by the wife for restitution of conjugal right. As a

consequence of the finding that the husband had been unsuccessful in

proving cruelty and desertion by the wife, the Family Court rightly held

that the wife was entitled to a decree for restitution of conjugal rights.

We do not find any error in the findings recorded by the Family Court

so as to interfere with the same in these appeals.

12. In the result, the Family Court Appeals are dismissed with

no order as to costs.

               KUM. INDIRA JAIN, J                              SMT VASANTI  A  NAIK, J
         





     KHUNTE / JOSHI





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