Bombay High Court
Christine Lazarus Menezes vs Lazarus Peter Menezes on 21 April, 2017
Bench: A.S. Oka
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FCA-150-2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
FAMILY COURT APPEAL NO. 150 OF 2008
Mrs. Christine Lazarus Menezes ....Appellant
V/S
Mr. Lazarus Peter Menezes ....Respondent
ALONGWITH
CRIMINAL REVISION APPLICATION NO.368 OF 2008
Mrs. Christine Lazarus Menezes ...Applicant
V/S
Mr, Lazarus Peter Menezes ...Respondent
Mr Amogh Singh a/w Mr. Jeet Gandhi & Ms. Varsha Bhogle i/by Shri.
D.R. Shah for the Appellant/Applicant
Smt. Prabha Badadare for the Respondent
...
CORAM : A.S. OKA &
A.A. SAYED, JJ
RESERVED ON : 27 OCTOBER 2016
PRONOUNCED ON : 21 APRIL 2017
JUDGMENT: (Per A.A.Sayed, J.)
1. The above Family Court Appeal and Civil Revision Application are
filed by the Appellant/Applicant/wife challenging the common judgment
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and order dated 26 May 2008 passed by the Family Court at Bandra,
Mumbai, in Petition No.A-1162/2005 and Petition No.E-187/2005. Petition
No.A-1162/2005 was filed by the Respondent/husband for dissolution of
marriage on the ground of desertion and cruelty under sections 10(ix)
and (x) respectively of the Divorce Act, 1869. Petition No.E-187/2005
was filed by the Appellant/Applicant/wife for maintenance under section
125 of the Code of Criminal Procedure Code, 1973. The operative part of
the impugned common judgment of the Family Court reads as under:
"ORDER
PETITION NO.A-1162/2005:
Petition is allowed with costs.
The marriage between the Petitioner-Lazarus Peter Menezes
and the respondent-Christine Lazarus Menazes solemnized on
28-12-1987 is hereby dissolved by a decree of dissolution of
marriage.
Decree be drawn up accordingly.
PETITION NO.E-187/2005:
The Petition is partly allowed.
As regards the claim of maintenance of the Petitioner is
concerned, it is rejected.
The Respondent shall pay Rs.1,000/- per month to each of the
daughters payable from the date of this order.
He shall pay Rs.2,000/- to her towards cost and bear his own."
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Both, the Family Court Appeal as well as the Civil Revision Application,
are being disposed of by this common judgment and order.
2. The parties are hereinafter referred to as `husband' and `wife'.
They were married according to Christian rites and customs on 28-12-
1987. Both were residing in the same building and fell in love with each
other and decided to get married. At the time of marriage the husband
was an electrical contractor and the wife was working as a clerk in a
school at Bandra. They were blessed with two daughters born on 28-9-
1988 and 8-5-1990 respectively. In or about 1989, the husband got a job
as Electrician in Hindustan Petroleum Corporation Ltd. (HPCL).
3. Common evidence was recorded by the Family Court in the
husband's Petition for divorce and the wife's Petition for maintenance.
The husband has examined himself. The wife examined herself and 3
witnesses in support of her case. After hearing the parties, the Family
Court allowed the Petition of the husband and passed a decree of
dissolution of marriage between the parties on the grounds of 'cruelty'
and 'desertion' and partly allowed the Petition of the wife by granting
maintenance of Rs. 1000/- per month to each of the two daughters and
rejected the prayer of maintenance to the wife, as indicated in paragraph
1 hereinabove.
4. We have heard the learned Counsel for the parties. The learned
Counsel have taken us through the pleadings and evidence recorded by
the Family Court.
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FAMILY COURT APPEAL NO. 150 OF 2008
5. The issues framed and answered by the Family Court in respect of
the husband's Petition No.A-1162/2005 seeking divorce, were recorded
as under:
ISSUES FINDINGS
1) Does the Petitioner prove that the
Respondent has deserted him for at least two
years immediately preceding the presentation
of the Petition? In the Affirmative
2) Does the Petitioner prove that the
Respondent has treated him with cruelty? In the Affirmative
3) Is he entitled for a decree of divorce? In the Affirmative
4) Whether the Petitioner be declared as an
exclusive owner and in possession of the Flat
45/2219, Samadhan CHS Ltd. Gandhi Nagar,
Bandra (East), Mumbai 400 051 of his
matrimonial house and row house No.17 at
Ashwini Residency, Sansodo Raia Salcette,
Goa and that the Respondent has no right or
claim to sell away or dispose of the same
without prior written consent of the Petitioner?
OR in the alternative
Whether the Petitioner be declared the joint
owner and in possession with Respondent in
Flat 45/2219, Samadhan CHS Ltd. Gandhi
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Nagar, Bandra (East), Mumbai 400 051 and
row house No.17 at Ashwini Residency,
Sansodo Raia Salcette, Goa of his
matrimonial house and that Respondent has
no right or claim to sell away or dispose of the
same without prior written consent of the
Petitioner?
In the Negative
5) Whether the Respondent is hereby
restrained by a permanent and perpetual
order from restraining, transferring, selling or
disposing off or from creating any third party
interest or alienating or encumbering the said
flat at Flat 45/2219, Samadhan CHS Ltd.
Gandhi Nagar, Bandra (East), Mumbai 400
Residency, Sansodo Raia Salcette, Goa? In the Negative
6) Whether the Respondent is hereby
restrained by a permanent and perpetual
order from restraining, transferring, selling or
disposing off or from creating any third party
interest or alienating or encumbering the said
Flat 45/2219, Samadhan CHS Ltd. Gandhi
Nagar, Bandra (East), Mumbai 400 051 and
row house No.17 at Ashwini Residency,
Sansodo Raia Salcette, Goa and or from
regularizing the tenancy/ownership/
membership of the said flat in the name of
any third party? In the Negative
7) What order and decree? As per final order
6. At the outset it needs to be mentioned that the husband has not
challenged the findings in the impugned order of the Family Court against
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him in his Petition for divorce with regard to the reliefs claimed in respect
of the matrimonial house at Bandra (East) and the Row House at Goa
which he had allegedly bought in his wife's name and those findings have
attained finality.
7. We shall first deal with the ground of 'cruelty' alleged by the
husband at the hands of his wife for seeking dissolution of marriage
under section 10(x) of the Divorce Act, 1869. It is required to be noted
that the expression 'cruelty' has not been defined under the Divorce Act,
1869.
8. In Samar Ghosh v/s. Jaya Ghosh (2007) 4 SCC 511, the Apex
Court, while construing the expression 'cruelty', after reviewing various
judgments of the Indian Courts as well as Foreign Courts, observed in
paragraphs 99,100 and 101 as follows:
99. Human mind is extremely complex and human behaviour is
equally complicated. Similarly human ingenuity has no bound, therefore,
to assimilate the entire human behaviour in one definition is almost
impossible. What is cruelty in one case may not amount to cruelty in
other case. The concept of cruelty differs from person to person
depending upon his upbringing, level of sensitivity, educational, family
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and cultural background, financial position, social status, customs,
traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain
static; it is bound to change with the passage of time, impact of modern
culture through print and electronic media and value system etc. etc.
What may be mental cruelty now may not remain a mental cruelty after
a passage of time or vice versa. There can never be any strait-jacket
formula or fixed parameters for determining mental cruelty in
matrimonial matters. The prudent and appropriate way to adjudicate the
case would be to evaluate it on its peculiar facts and circumstances
while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we
deem it appropriate to enumerate some instances of human behaviour
which may be relevant in dealing with the cases of 'mental cruelty'. The
instances indicated in the succeeding paragraphs are only illustrative
and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute
mental pain, agony and suffering as would not make possible for the
parties to live with each other could come within the broad parameters
of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the
parties, it becomes abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put up with such conduct
and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent
rudeness of language, petulance of manner, indifference and neglect
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may reach such a degree that it makes the married life for the other
spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish,
disappointment, frustration in one spouse caused by the conduct of
other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated
to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse
actually affecting physical and mental health of the other spouse. The
treatment complained of and the resultant danger or apprehension must
be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or
total departure from the normal standard of conjugal kindness causing
injury to mental health or deriving sadistic pleasure can also amount to
mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction and
emotional upset may not be a ground for grant of divorce on the ground
of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married
life which happens in day to day life would not be adequate for grant of
divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated
instances over a period of years will not amount to cruelty. The ill-
conduct must be persistent for a fairly lengthy period, where the
relationship has deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it extremely difficult to
live with the other party any longer, may amount to mental cruelty.
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(xi) If a husband submits himself for an operation of sterilization without
medical reasons and without the consent or knowledge of his wife and
similarly if the wife undergoes vasectomy or abortion without medical
reason or without the consent or knowledge of her husband, such an
act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable
period without there being any physical incapacity or valid reason may
amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to
have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it
may fairly be concluded that the matrimonial bond is beyond repair. The
marriage becomes a fiction though supported by a legal tie. By refusing
to sever that tie, the law in such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard for the feelings and
emotions of the parties. In such like situations, it may lead to mental
cruelty.
9. In K.Srinivas Rao v/s. D.A.Deepa, (2013) 5 SCC 226, in
paragraphs 31, 32 and 33, it has been observed by the Supreme Court
as under:
"31. We are also satisfied that this marriage has irretrievably broken
down. Irretrievable breakdown of marriage is not a ground for divorce
under the Hindu Marriage Act, 1955. But, where marriage is beyond
repair on account of bitterness created by the acts of the husband or the
wife or of both, the courts have always taken irretrievable breakdown of
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marriage as a very weighty circumstance amongst others necessitating
severance of marital tie. A marriage which is dead for all purposes
cannot be revived by the court's verdict, if the parties are not willing.
This is because marriage involves human sentiments and emotions and
if they are dried-up there is hardly any chance of their springing back to
life on account of artificial reunion created by the court's decree.
32. In V. Bhagat this Court noted that divorce petition was pending for
eight years and a good part of the lives of both the parties had been
consumed in litigation, yet the end was not in sight. The facts were such
that there was no question of reunion, the marriage having irretrievably
broken down. While dissolving the marriage on the ground of mental
cruelty this Court observed that:
"21. ... Irretrievable breakdown of marriage is not a ground by
itself, but, while scrutinizing the evidence on record to determine
whether the grounds alleged are made out and in determining the
relief to be granted the said circumstance can certainly be borne
in mind."
33. In Naveen Kohli, where husband and wife had been living
separately for more than 10 years and a large number of criminal
proceedings had been initiated by the wife against the husband, this
Court observed that:
"86. ... the marriage had been wrecked beyond the hope of
salvage [and] public interest and interest of all concerned lies in
the recognition of the fact and to declare defunct de jure what is
already defunct de facto."
It is important to note that in Naveen Kohli case this Court made a
recommendation to the Union of India that the Hindu Marriage Act,
1955 be amended to incorporate irretrievable breakdown of marriage
as a ground for the grant of divorce."
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Though in the aforesaid cases, the Apex Court has dealt with the
expression 'cruelty' under the Hindu Marriage Act, 1955, the principles
laid down in the said judgments would also apply in the present case
governed by the Divorce Act, 1869.
10. In Malathi Ravi, M.D. v/s. B.V.Ravi, M.D., (2014) 7 SCC 640, it
has been held by the Supreme Court that subsequent events which are
established on the basis of undisputed material on record can be taken
into consideration in determining whether the grounds for divorce are
made out.
11. In V.Bhagat v/s. D.Bhagat, (1994) 1 SCC 337, after considering
the material on record, the Supreme Court held that averments made in
the counter and the questions put by her Counsel in the cross-
examination of the Petitioner constitute act of cruelty and no further
material is necessary to establish additional grounds.
12. In Vijaykumar Ramchandra Bhate v/s. Neela Vijaykumar Bhate
(2003) 6 SCC 334, the Apex Court has held that the allegations made in
the written statement or suggested in the course of examination and by
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way of cross-examination satisfy the requirement of law (for the grant of
divorce on the ground of cruelty) has also come to be firmly laid down by
the Supreme Court following the decision in V. Bhagat Vs. D. Bhagat.
13. In Vishwanath Agrawal v/s. Sarla Vishwanath Agrawal, (2012) 7
SCC 288, the Apex Court after analyzing the subsequent events and
conduct of the wife allowed the Petition of the husband for divorce.
14. The aforementioned judgments thus make it clear that the
averments in the Written Statement and the undisputed evidence on
record of the subsequent events after filing of the Petition for divorce, can
be taken into consideration in determining whether the grounds of
divorce are made out. The present case is required to be examined
keeping in mind the exposition of law laid down in the aforesaid rulings. It
is not necessary for us to set out the innumerable allegations in the
Petition (and the oral evidence) by the husband against his wife and
burden this judgment. We therefore propose to essentially deal with the
more significant and overriding material on record. Having carefully
analyzed the pleadings and evidence on record and upon hearing the
learned Counsel for the parties, for the reasons to follow, we are of the
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view that no interference is called for with the impugned order of the
Family Court in allowing the Petition for divorce of the husband on the
ground of 'cruelty'. However, as discussed in the latter part of this
judgment, insofar as the ground of 'desertion' is concerned, we are not in
agreement with the Family Court that the husband is entitled to
dissolution of marriage on that count.
15. The wife has admitted in her affidavit in lieu of examination-in-chief
that she had lodged an FIR with the Kherwadi Police Station, Mumbai,
against her husband on 07-01-2005 under sections 498-A and 406 of the
Indian Penal Code, 1860. In the said FIR she has interalia accused her
husband of stealing her gold ornaments and demanding Rs.2 lakhs from
her to buy a car. The said FIR has been filed by the wife against her
husband after about 18 years of marriage. It is stated by the wife in her
Written Statement that her husband had left the matrimonial home on his
own accord in the night of 3/4 January 2005 despite she and their
daughters pleading him not to leave. She has admitted in her cross-
examination that pursuant to her Criminal Complaint, her husband was
arrested at Goa from his parent's house on 10 January 2005 and he was
brought to Mumbai and was in jail for 7 days and after he was granted
bail, he was required to attend the police station every Monday between
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4 p.m. to 6 p.m. She has not denied the statement of the husband in his
Petition that due to influence of her friends, she came with Police at Goa
and got him arrested from his parent's home. What is however of
significance is that she has admitted in her cross-examination that she
had filed the Criminal Complaint in order to bring back her husband to
their matrimonial home. She has admitted in her cross-examination that
her relationship with her husband's family was cordial till the time she
had filed a Criminal Complaint under section 498-A against her husband
and he was arrested in Goa. Thus, if on the wife's own showing, the
Criminal Complaint filed by her against her husband was false and was
filed only to bring back her husband and consequent to which he was
arrested and was in jail for about 7 days, it would constitute a clear case
of cruelty by the wife against her husband. We are informed that the
husband was ultimately acquitted of all charges in the said Criminal
proceedings. In our view, the aforementioned act of the wife in lodging a
false Criminal Complaint under section 498-A against her husband
pursuant to which the Police arrested him from his parent's house at Goa
and he was incarcerated, was sufficient in itself to grant decree for
dissolution of marriage to the husband on the ground of cruelty by the
wife.
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16. It is noticed that at the time of filing of the Petitions, the wife was
shown as residing in the matrimonial home at Bandra viz.- Room
No.2219, Building No.45, Gandhi Nagar, Bandra (East), Mumbai. The
wife has stated in her Written Statement as well as in the cross-
examination that her husband owns a flat being flat No.603, Building
No.4, Krishna Green Land Park, Kasar Wadali Naka, Ghodbunder Road,
Thane (West). In the cross-examination, however, she has stated that
immediately after filing her Petition, she has shifted and now lives in the
very flat viz. Flat No.603 at Thane belonging to her husband, since April
2005. She has further stated that she has lodged a criminal complaint at
Ghodbunder Road Police station, Thane, against her husband in
September 2005 as she was threatened to leave the said flat at Thane.
She has admitted that she has also filed a suit against her husband in the
District Court, Thane, in respect of the said flat at Thane, because she
was allegedly threatened by her husband by sending people. She has
stated that in order to pay education expenses and daily expenses of her
children, who have school and college at Bandra, she had rented the
matrimonial home at Bandra and shifted to the said flat at Thane. She
denied the suggestion that she, accompanied by a constable, broke the
lock of the said flat No.603 at Thane and forcibly entered the said flat.
She had admitted that because the property came in her possession, her
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husband does not have a place to live. She has, however, volunteered to
state in her cross-examination that her husband is welcome to stay with
her. She has admitted that she has not given any legal notice to her
husband calling him back to stay with her and she has not filed any
Petition for restitution of conjugal rights. It is also an admitted position
before the Court that the husband now lives in Goa.
17. The husband has averred in his Petition for divorce that his wife
was of suspicious nature and doubted his character and had made his
life miserable. He has stated that in or about the year 2003, his wife
started accusing him of having illicit relationship with one Beryl who was
staying in his parent's building. He has averred that his wife accused him
of having relationship even with the maid servant. He has further averred
that his wife also accused him of having relationship with his own
maternal uncle's daughter and she went to the extent of saying that he
did not spare even their younger daughter and that he had slept with her.
While the wife in her Written Statement has denied that she has stated
anything of the kind about her husband's maternal uncle's daughter and
their daughter, she has reiterated in her Written Statement that the maid
servant was brought by her husband and many times her husband and
the maid servant were caught red-handed indulging in all inappropriate
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and unmentionable acts. The wife has deposed in her examination in
chief that her husband had kept Beryl in a flat at Chembur and even went
to the extent of giving the address of the said flat as Flat No. 2002, Dalal
Sadan CHS, Peston Sagar, Chembur, which according to her was taken
on leave and license basis from one Mr. Sawant. In her cross-
examination, however, she has admitted that she had made false
allegations that her husband and Beryl lived at the flat in Chembur for 11
months.
18. The wife has examined three witnesses in support of her case that
her husband had an illicit relationship with Beryl. The first witness is one
Ms. Rushana Baig. She has admitted in her cross-examination that she
is a close friend of the wife and came with her to Court every day and
also helped her in filing the Petition and police complaints. Her
examination in chief reveals that she has infact improved upon the case
of the wife by stating that the husband used to 'torture' the wife for dowry.
As stated earlier, even the wife has admitted in her cross examination
that she had filed the FIR under section 498-A only to bring back her
husband. The second witness is the wife's brother, Rocky D'Souza. In his
examination in chief he has stated that he had seen the husband with
Beryl at the following places - Building No. 41, Mahim, MIG Colony,
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Shivaji Park and Bandstand. He has gone to the extent of stating in his
deposition that he saw the husband and Beryl in MIG Colony hugging,
kissing and smooching in the dark. In his cross-examination however, he
admits that he had seen the husband and Beryl at Mahim Church,
outside Gurunanak Hospital and Shivaji Park and beyond this he has not
seen anything else, which demonstrates that he has falsely stated that he
had seen the husband hugging, kissing and smooching. Pertinently, the
wife, neither in her pleadings nor evidence has stated that her brother
had seen her husband and Beryl indulging in the aforementioned acts.
The third witness is one Rahimuddin Chawkhan. He has stated that he
knows the wife as her brother Rocky D'Souza was working in Kuwait,
where he was working. He has admitted that he was a driver and had
driven the two policemen to Goa who collected one policeman from Goa
and went to the house of the husband and he was arrested.
19. On assessing the material on record, we are of the view that the wife
has not been able to substantiate her allegations and hence, we find it
difficult to accept the case of the wife that her husband was having an illicit
relationship with Beryl or had relation with the maid servant or that her
husband had eloped with Beryl on one occasion for 60 days as averred in
her Written Statement, particularly when she has lied on oath and has
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admitted that she has falsely deposed that her husband and Beryl were
residing together in a flat at Chembur and even went to the extent of
giving the address of the said flat as Flat No. 2002, Dalal Sadan CHS,
Peston Sagar, Chembur, which according to her was taken on leave and
license basis from one Mr. Sawant. She has admitted that she had
lodged a false FIR under section 498-A of Indian Penal Code against her
husband pursuant to which he was arrested and was incarcerated. In her
Statement pursuant to her FIR, the wife has stated that her husband
used to bring Beryl at the matrimonial home and indulge in illegal
relationship in her presence, however, in her Written Statement, she has
given only one instance when she had seen her husband with Beryl on
the bike. The husband in his deposition has denied that he had a
relationship with Beryl as alleged by his wife. It is an admitted position
that the said Beryl is about 13 years younger to the husband and known
both to her and her husband as she was their neighbour prior to their
marriage and was a family friend of the family of her husband. We find
that the deposition of the wife and the depositions of the witnesses on
her behalf are not at all reliable. However, having said that, it needs to be
borne in mind that we are dealing with a Petition filed by the husband
seeking divorce on the ground of cruelty (and desertion) and not a
Petition filed by the wife seeking divorce on the ground of cruelty or
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adultery and the case sought to be brought forth by the wife as regards
her husband having extra-marital affairs does not help her in any manner
in denying a decree of dissolution of marriage to the husband for her acts
of cruelty particularly when it is not the case of the wife that her behavior
was justifiable for the reason that her husband was having illicit relations.
As a matter of fact, her case is that of denial of the acts of cruelty
committed by her as alleged in the Petition for divorce by her husband.
Though we are conscious of the fact that it cannot be expected that there
be full proof of a spouse having an affair outside of marriage, in the facts
and circumstances of the present case, even after preponderance of the
material on record, we reiterate that the evidence of the wife and the
witnesses examined by her is/are not reliable.
20. It is seen that the parties are residing separately since about 12
years. The pleadings and the evidence on record clearly indicate that the
marriage between the husband and wife has irretrievably broken down.
We are of the view that the parties cannot reasonably be expected to live
together. We are conscious of the fact that irretrievable break down of
marriage is not a ground to seek divorce, however, as held by the
Supreme Court in K.Srinivas Rao v/s. D.A.Deepa, it is one of the
weighty circumstance for consideration in granting a decree for
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dissolution of marriage on the ground of cruelty. We find that the claim of
the wife, despite various serious allegations made against her husband
including that of having extra-marital affairs, that she wants her husband
to come and stay with her is not at all bonafide. She has made wild
allegations against her husband which she has not been able to
substantiate. Having regard to the facts and circumstances of the case,
we are unable to brush aside the case of the husband that due to the
behaviour and conduct of his wife, he was fed up with life and despite
having a job with HPCL, he decided to take voluntary retirement and
settle in Goa with his parents.
19. In light of the above discussion, in our opinion, the husband has
been subjected to mental cruelty at the hands of his wife and the Family
Court has rightly allowed the Petition of the husband for dissolution of
marriage under section 10(1) (x) of the Indian Divorce Act, 1869 on the
ground of cruelty.
20. So far as the ground of 'desertion' under section 10(1)(ix) of the
Divorce Act is concerned, we find that the Family Court was not right in
granting a decree for dissolution of marriage to the husband on that
count. It was the case of the husband in his Petition for divorce that he
was thrown out by his wife from their matrimonial home in the midnight of
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03/04 January, 2005. The Petition for divorce was filed by the husband
on 18 June, 2005, after he was arrested on 10 January 2005 and after
the wife had filed her Petition for maintenance on 4 April, 2005. To
constitute desertion, it is sine qua non that the spouse deserts the
Petitioner for at least two years immediately preceding the presentation
of the Petition. In the present case, indisputably, the husband has filed
the Petition for divorce within two years of his ceasing to live with his wife
in their matrimonial home. There is only a bald assertion in the Petition
by the husband that his wife has completely withdrawn herself from the
society and his company and he and his wife have no physical
relationship since December 2000 though they were living under the
same roof and that his wife has deserted him for more than two years
prior to filing of the Petition. The wife in her Written Statement however
has asserted that her husband has deserted her and had left the house
in the night of 3/4 January 2005 on his own accord despite her pleading
with him not to leave, and that she had never restricted him for
cohabitation and supported her husband's thirst for sex till December,
2004. In our view, the pleadings and evidence on record clearly suggest
that the husband himself is not interested in living with his wife after he
was allegedly thrown out of the matrimonial home by his wife as claimed
by him, in the night of 3/4 January 2005 and after his wife had filed the
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FIR pursuant to which he was arrested in Goa on 10 January 2005 from
his parent's home. In these circumstances, there was no justification for
the Family Court to have granted a decree for dissolution of marriage to
the husband on the ground of desertion by his wife.
21. In that view of the matter, so far as the Petition for divorce of the
husband is concerned, the impugned judgment of the Family Court is
required to be upheld to the extent of grant of decree of dissolution of
marriage to the husband on the ground of cruelty. However, so far as
decree of dissolution of marriage on the ground of desertion is
concerned, the impugned judgment of the Family Court is liable to be set
aside.
CRA NO.368 OF 2008
22. The points recorded and answered by the Family Court in the
wife's Petition for maintenance being Petition No.E-187/2005 are as
under:
POINTS FINDINGS
1) Does Petitioner prove that the
Respondent has refused and
neglected to maintain her and the Daughters
daughters?
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2) Whether she is entitled to claim
and get maintenance from the
Respondent for herself and the In the Affirmative
minor daughters?
3) What order? As per final order
23. It is an admitted position that during the pendency of the
proceedings both the daughters have attained majority (the elder
daughter is presently about 28 years of age and younger one about 26
years). In these circumstances, indubitably, the daughters would not be
entitled to maintenance. Learned Counsel for the wife, however, pressed
for maintenance for the wife. He submits that the Family Court has
wrongly rejected the claim of maintenance of the wife by the impugned
order.
24. The case of the wife in her oral evidence is that her husband was
paying an amount of Rs.8,000/- and sometimes Rs. 10,000/- per month
towards household expenses and children's expenses till January 2005
and since February 2005 he has not paid any maintenance. In the
Petition for maintenance, the wife has claimed maintenance of Rs.4000/-
per month.
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25. It is an admitted position that the wife, who was earlier residing at
the matrimonial house being Room No.2219, Building No.45, Gandhi
Nagar, Bandra (East), Mumbai, has now shifted to flat belonging to her
husband viz.- Flat No.603, Building No.4, Krishna Green Land Park,
Kasar Wadali Naka, Ghodbunder Road, Thane (West), which flat is being
occupied by her since April 2005. It is also an admitted position before
the Court that the husband is not residing in the said flat at Thane and
that he is now residing at Goa. The wife has admitted in her cross
examination that she has given the matrimonial house at Bandra, which
is in her name, on leave and license basis since January 2006 and she
deriving income therefrom. She had even deposed before the Family
Court that she will produce the leave and license Agreement in respect of
the said flat at Bandra on the next date. Though she has alleged that her
husband is an electrician and is earning Rs.15,000/- to 20,000/- per
month, she has stated in her cross-examination that she did not have any
document to support her claim of income of her husband. She has
admitted that her husband is lame in one leg.
26. It is submitted by the Counsel on behalf of the husband that the
husband's health has deteriorated and he is having serious mobility
issues and is now has confined to the house at Goa and has no source
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of income. This, however, is disputed by the wife. It is contended by the
learned Counsel for the wife that the husband is earning Rs.15,000/- to
Rs.20,000/- per month and he be directed to pay maintenance to his
wife.
27. In our view, even if were to assume that the husband is earning
Rs.15,000/- to Rs.20,000/- per month as claimed, it being an admitted
position that the wife is having her own source of income from the
matrimonial house at Bandra which is given on leave and license and the
fact that since April 2005, she is exclusively occupying the flat at Thane
belonging to her husband, the wife would not be entitled to maintenance
as prayed by her from her husband and we see no reason to interfere
with the order of the Family Court in rejecting the Application of the wife
for maintenance under section 125 of Cr.P.C.
28. In the circumstances, we pass the following order:
(i) The Family Court Appeal of the wife is partly allowed. The
marriage between the husband and wife shall stand dissolved
on the ground of cruelty and impugned order of the Family
Court is upheld to that extent. The impugned order of the
Family Court granting decree of dissolution of marriage on the
ground of desertion shall stand set aside. The impugned order
of the Family Court shall stand modified accordingly;
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(ii) The Civil Revision Application is dismissed. Consequently, the
impugned order of the Family Court rejecting maintenance to
the wife is upheld.
(iii) Parties are left to bear their own costs.
(A.A. SAYED J) (A.S. OKA J)
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