Bombay High Court
Mr. Prashant T. Churhe vs Mrs. Shweta Prashant Churhe on 5 April, 2017
Bench: V.A. Naik
0504FCA2.17-Judgment 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 2 OF 2017
APPELLANT :- Mr. Prashant T. Churhe, Aged about 39
O.Petitioner on R.A. years, Occu. Service, R/o Flat No.13, Bldg.
No.4/B, 3rd Floor, Plot No.6, NNP Colony,
Film City Road, Goregaon (E), Mumbai-
400 065. At present R/o FC-708, Mayur
Vihar-III, Delhi-96.
...VERSUS...
RESPONDENT :- Mrs. Shweta Prashant Churhe, Aged about
O.Respondent on R.A. 34 years, Occ. Doctor, R/o C/o Shri
G.N.Badghare, 145, Parekh Layout,
Dronacharya Nagar, Near N.I.T. Garden,
Trimurti Nagar, Nagpur.
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Mr.A.B.Bambal, counsel for the appellant.
Mr. P. R. Wagh, counsel for the respondent.
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CORAM : SMT. VASANTI A NAIK &
MRS.SWAPNA JOSHI
, JJ.
DATED : 05.04.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
The family court appeal is admitted and heard finally at
the stage of admission, as the record and proceedings were called and a
notice was served on the respondent that the appeal could be admitted
and decided finally at the stage of admission.
0504FCA2.17-Judgment 2/11
2. By this family court appeal, the appellant-husband
challenges the judgment of the Family Court, Nagpur dated
01/03/2016, dismissing the petition filed by the appellant for a decree
of divorce on the ground of cruelty. According to the appellant, the
Family Court could not have passed a decree of judicial separation and
ought to have granted a decree of divorce after considering the evidence
on record.
3. Few facts giving rise to the family court appeal are stated
thus :-
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 at Nagpur on
27/01/2006 as per the Hindu rites and customs. After the marriage, the
parties started residing at Goregaon where the husband is working as
an anchor in television-news channels in Mumbai. In the petition filed
by the husband for a decree of divorce on the ground of cruelty, it was
pleaded that from the first day of the marriage, the wife told the
husband that she was not interested in marrying him. It is pleaded that
the wife did not have the knowledge of preparing food and she used to
prepare tasteless, salty or spicy food. It is pleaded that the wife did not
have the sense of dressing properly and conversing with the friends of
0504FCA2.17-Judgment 3/11
the husband. It is pleaded that the wife was a subject of ridicule in the
family functions but she was not interested in changing her lifestyle. It
is pleaded that the wife was not interested in going out with the
husband and always wished to stay in the matrimonial home. It is
pleaded that though the wife was suffering from a mental disorder, she
did not cooperate with the husband and was not ready to go to the
psychiatrist. It is pleaded that the wife was careless and while ironing
the clothes she used to burn them. It was pleaded that the wife used to
disclose the personal matters to the other relatives. It is pleaded that
the wife used to remove cash from the wallet of the husband without
his permission and used to read the messages received by the husband
on his cellphone. It is pleaded that the wife used to make huge
purchases by removing the debit card from the wallet of the husband. It
is pleaded that on 20/10/2010, the wife went out of the house for
purchasing some household articles and did not return to the
matrimonial house. It is stated that when the husband searched the
cupboards, he was shocked to find that all the apparels, ornaments and
important documents of the wife were missing. It is pleaded that the
husband then realised that the wife had left the matrimonial home on
the pretext of purchasing vegetables from the vegetable vendor. It is
pleaded that the wife had left the minor daughter, who is aged about
three years in the matrimonial home while leaving the house and
0504FCA2.17-Judgment 4/11
though the husband called on the cellphone of the wife, the wife did not
receive the calls. It is pleaded that the husband was very anxious and
therefore he lodged a report in respect of the disappearance of the wife
in the police station. It is pleaded that on the next date he received a
call from the police station and was informed that the wife had started
residing at her parental house at Nagpur. It is pleaded that the husband
then went to Nagpur with his parents and relatives on 24/10/2010 and
was shocked to find that the house of his in-laws was locked. It is
pleaded that the husband tried to contact the wife, but the wife did not
receive his calls. It is pleaded that the acts on the part of the wife
caused great mental agony to the husband. It is pleaded that the
husband was entitled to a decree of divorce on the ground of cruelty.
4. The wife filed the written statement and denied the claim
of the husband. After denying the allegations levelled by the husband
against the wife, the wife pleaded that she had not left the matrimonial
home on 20/10/2010 after informing the husband that she wanted to
purchase vegetables. The wife pleaded that the husband had subjected
her to terrible assault and torture on 20/10/2010 and he and his
mother had locked her in the house and kept her without food and
water. It is pleaded that fearing danger to her life, the wife escaped
from the house and came to Nagpur by train. It is pleaded that after
0504FCA2.17-Judgment 5/11
returning to Nagpur, the wife had lodged a report with the Mahila Cell
in the police station at Nagpur and had also sent a written complaint to
the police station at Goregaon, Mumbai. The wife admitted that she
had filed a petition for judicial separation and that she had withdrawn
the same. The wife sought for the dismissal of the petition.
5. On the aforesaid pleadings of the parties, the Family Court
framed the issues and on an appreciation of the evidence on record,
passed a decree of judicial separation after holding that the husband
had failed to prove that the wife had treated him with cruelty.
6. Shri Bambal, the learned counsel for the husband,
submitted that it would be necessary to remand the matter to the
Family Court, as the Family Court has not considered the evidence
tendered by the husband that the wife had left the matrimonial home
on 20/10/2010 on the pretext of purchasing vegetables and some other
articles and had joined the company of her parents at Nagpur. It is
submitted that the Family Court failed to consider the case of the
husband that the wife had dropped her three years old daughter in the
matrimonial home while leaving the house on 20/10/2010. It stated
that while leaving the matrimonial home, the wife had carried her gold
ornaments, important documents, photographs, pen drives, CDs., DVDs,
0504FCA2.17-Judgment 6/11
etc. from the matrimonial home. It is submitted that the Family Court
had failed to consider that the husband was required to search for the
wife in the nearby locality but since he could not locate her and she did
not receive his calls, he was required to lodge a report in the police
station. It is stated that the Family Court had failed to consider that the
act on the part of the wife of leaving the matrimonial home on the
pretext of purchasing vegetables and joining the company of her parents
after leaving behind her only daughter, who was three years old would
tantamount to cruelty. It is stated that the non-consideration of the
material pleadings and evidence would vitiate the judgment of the
Family Court. It is submitted that on 21/10/2010, the husband became
aware that the wife had joined the company of her parents and this
important aspect has not been considered by the Family Court while
deciding the petition filed by the husband for a decree of divorce on the
ground of cruelty. It is stated that the act on the part of the wife of
leaving the matrimonial home at Goregaon, Mumbai on the pretext of
purchasing vegetables and going to her parents at Nagpur without
informing the husband would surely be an act of cruelty. It is submitted
that at least the Family Court ought to have considered this aspect of
the matter before holding that the other acts on the part of the wife
would reflect only the normal wear and tear, in a matrimonial
household and would not be considered to be the acts of cruelty. It is
0504FCA2.17-Judgment 7/11
submitted that the matter may be remanded to the Family Court for
reconsidering the evidence of the parties, as failure on the part of the
Family Court to consider the material evidence would vitiate the
judgment of the Family Court.
7. Shri Wagh, the learned counsel for the wife, supported the
judgment of the Family Court. It is submitted that the Family Court has
rightly held that the wife did not treat the husband with cruelty. It is
submitted that though it is the case of the husband that the wife had
left the house without informing him on 20/10/2010, as a matter of
fact, the wife was tortured at the hands of the husband and his mother
on 20/10/2010 and hence fearing danger to her life, she was compelled
to leave the matrimonial home and return to Nagpur to her parental
home. It is however fairly admitted that the Family Court has not
considered the case of the husband and the evidence tendered by him
about the wife leaving the matrimonial home on 20/10/2010 without
informing him that she was going to Nagpur and by leaving her minor
daughter at Mumbai in the judgment. It is stated that an appropriate
order may be passed in these circumstances of the case.
8. On hearing the learned counsel for the parties, it appears
that the following points arise for determination in this family court
appeal.
0504FCA2.17-Judgment 8/11
(I) Whether the Family Court was justified in dismissing the
petition filed by the husband without considering the
evidence pertaining to the incident dated 20/10/2010?
(II) Whether the matter is liable to be remanded to the Family
Court?
(III) What order?
9. We have already narrated the pleadings of the parties in
the earlier part of the judgment. Apart from levelling several allegations
against the wife, the husband has pleaded in paragraphs-38 to 41 of the
petition that the wife had left the matrimonial home on 20/10/2010 on
the pretext that she had to purchase some vegetables and articles. The
husband has pleaded that after about two hours when the wife did not
return, the husband noticed that the wife had carried all her belongings,
gold ornaments, important documents, wedding photographs, pen
drives, cards, CDs. DVDs and other belongings from the matrimonial
home. It is pleaded that the wife had left the matrimonial home on the
pretext that she had to purchase vegetables and had joined the family of
her parents at Nagpur without his consent, knowledge or permission. It
is pleaded that the brother of the wife had helped her in removing her
belongings from the matrimonial home. It is pleaded that the husband
had to search for the wife in the nearby localities and while doing so he
0504FCA2.17-Judgment 9/11
had to carry his minor daughter with him. It is pleaded that the
husband could not locate the wife despite great efforts. It is pleaded
that the husband tried to call the wife on cellphone a number of times
but the wife did not receive the calls. It is pleaded that the husband
was very tense and anxious and hoped that the wife would return back
to the matrimonial home at the earliest, as she had left the minor
daughter aged about 3 to 4 years in the matrimonial home. It is pleaded
that at the relevant time, the minor child had her exams and the
husband became more tense. It is pleaded that on the next day i.e. on
21/10/2010, the husband received the call from Dindoshi Police Station
that the wife had reached to her parental house at Nagpur. It is pleaded
that the husband again tried to contact the wife on her cellphone but
the wife did not receive the calls. It is pleaded that the husband then
visited the parental home of the wife at Nagpur personally on
24/10/2010 but the house was locked and he did not secure any
information about the whereabouts of the wife and her parents. It is
pleaded that the husband tried to call the wife and also his in-laws on
their cellphone but neither the wife nor his in-laws received the phone
calls. It is pleaded that the husband was therefore required to return to
Mumbai without meeting the wife. Though the aforesaid facts are
pleaded in paragraphs-38 to 41 of the petition filed by the husband and
though the husband has tendered oral and documentary evidence to
0504FCA2.17-Judgment 10/11
prove the said facts, the Family Court has not even referred to the said
facts in the judgment. The Family Court has observed in paragraph-11
of the judgment that the allegations made by the husband that the wife
did not prepare the food properly, did not have a dressing sense, did
not go out with the husband, disclosed the matters between the parties
to the relatives, removed cash from the wallet of the husband, are
incidents reflecting general wear and tear. The Family Court observed
that the said acts on the part of the wife were not so serious. In
paragraph-12 of the judgment, the Family Court observed that though
the husband has pleaded that the wife was not mentally stable, the
husband has failed to prove the said fact. Some reasons are recorded by
the Family court in paragraph-12 for holding so. From a reading of the
short judgment rendered by the Family Court it appears that the Family
Court has not discussed the evidence of the parties in detail and has not
discussed the evidence tendered by the husband in respect of the
incident dated 20/10/2010 at all. Both the husband and the wife had
different stories to tell about the incident dated 20/10/2010. It was
necessary for the Family Court to have considered the version of the
husband in respect of the incident dated 20/10/2010 as also the version
of the wife. The Family Court however did not consider the pleadings
of the husband in paragraph-36 to 41 of the petition and the evidence
tendered by him to substantiate the said pleadings. It was necessary for
0504FCA2.17-Judgment 11/11
the Family Court to deal with the material pleadings and evidence on
the issue of cruelty, as the husband has filed the petition for a decree of
divorce on the said ground. As rightly stated on behalf of the husband,
the non-consideration of the material evidence would vitiate the
judgment of the Family Court. In the circumstances of the case, it
would be necessary to remand the matter to the Family Court for
deciding the petition filed by the husband afresh on merits, in
accordance with law.
10. Hence, for the reasons aforesaid, the family court appeal is
partly allowed. The judgment of the Family Court is hereby set aside.
The Family Court is directed to decide the petition filed by the husband,
in accordance with law, as early as possible and positively within six
months. The parties undertake to appear before the Family Court,
Nagpur on 24/04/2017 so that service of notice on the parties could be
dispensed with. Order accordingly. No costs.
The record and proceedings be remitted to the Family
Court at the earliest.
JUDGE JUDGE
KHUNTE
