Reena Mahendra Wahule vs Mahendra Kaduba Wahule
2017 Latest Caselaw 9646 Bom

                                                              FCA No. 18/2013
                                        1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                        FAMILY COURT APPEAL NO. 18 OF 2013
                                    WITH
                    CIVIL APPLIACATION NO. 14109 OF 2014

Reena w/o Mahendra Wahule,
Age: 23 years, Occu: Household,
R/o C/o Sheelabai w/o Bhimrao Jadhav,
Siddharthnagar, N-12, HUDCO,
Near Mangesh Medical, Aurangabad.                   ....Appellant

               Versus

Mahendra s/o Kaduba Wahule,
Age: 28 years, Occu: Service,
R/o : Siddharthnagar, N-12, HUDCO,
Aurangabad.                                         ....Respondent


Mr. A.C. Deshpande, Advocate for applicant.
Mr. V.P. Latange, Advocate for respondent.


                                CORAM   : T.V. NALAWADE AND
                                          ARUN M. DHAVALE, JJ.

RESERVED ON : 14/11/2017 PRONOUNCED ON : 15/11/2017

JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed to challenge the decision of the Family

Court, Aurangabad given in proceeding No. A-106/2012, which was

filed by the present appellant, wife under section 9 of Hindu

Marriage Act, 1955 (hereinafter referred to as 'the Act' for short).

The Family Court has dismissed the proceeding. Both the sides are

heard.

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2) In short, the facts leading to the institution of the appeal

can be stated as follows.

The relevant dates and incidents in the present matter as

follows :-

(i)     21-02-2010               -   Date of marriage.

(ii)    February 2011            -   Parties started living separate from

                                     each other.



3)              It is the case of wife that illtreatment was started to her

by the husband and his relatives on the ground that proper dowry

was not given to them and proper arrangements were not made at

the time of marriage and due to that the husband and his relatives

were feeling that they were insulted. It is the contention of wife that

husband used to give beating to her and her in laws were proving to

be hurdle even in keeping physical relationship with the husband.

4) It is the case of wife that on two occasions in January

2011, the father in law had made advances towards her with ill

intention and on those occasions, he was under influence of liquor. It

is her contention that she did not disclose the first incident, but

when the second incident took place, she disclosed it to the husband

and his relatives, but instead of supporting her, they assaulted her. It

is her case that she was then taken to the house of parents. It is her

FCA No. 18/2013

case that when attempt was made to reach her to matrimonial

house, husband and his relatives asked to give amount of

Rs.50,000/- as dowry. It is her case that this demand was not met

with and so, she was not allowed to resume cohabitation. It is her

case that she was driven out with threat and so, since February

2001 she has been living with her parents.

5) It is the case of wife that she was under severe stress

due to the conduct of the husband and his relatives and so, after

starting to live with the parents, she went to her sister, who is

resident of Alibag for staying there for few days. It is her case that

false information was spread by husband that she had eloped with

her boy-friend. It is her case that husband then started asking her to

give divorce and even notice of divorce was published by husband in

the newspaper viz. Lokmat dated 29.3.2012. It is her case that

husband want to marry second wife and so, he wants divorce. It is

her case that she is ready to resume cohabitation. On these

grounds, she had prayed for decree of restitution of conjugal rights.

6) The husband filed written statement and he denied that

he and his relatives have given illtreatment to the wife. It is his case

that on the first day in the married life, the wife had disclosed to him

that she had love affair and only due to the pressure of her relatives,

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she had married with him. It is his case that wife was reluctant to

cohabit with him and she used to go to the house of her parents

time and again. It is his case that only due to the insistence of her

parents and relatives, she used to return for short stay in the

matrimonial house.

7) It is the case of husband that the wife does not like him.

It is his case that the wife used to say that there are ghosts in the

house. It is his case that in his house the wife had tried to hang

herself. It is his case that wife had made false allegations against his

father and those allegations were made only to enable her to return

to the matrimonial house. It is his case that the wife wanted divorce

from him as she wanted to live with her lover. It is the case of

husband that ultimately, wife ran away and eloped with lover on

27.6.2011. It is his case that the mother of wife was required to give

missing report to police. It is his case that police traced the wife on

9.8.2011 in Mumbai.

8) It is the case of husband that on 15.11.2011 he had sent

notice to the wife, asking her to return to matrimonial house, but

she did not return and she has no intention to resume cohabitation.

It is his case that only to harass him, the proceeding for restitution

of conjugal rights is filed by the wife.

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9) The Family Court framed issues. In view of nature of

reliefs claimed, it was necessary for the wife to prove that the

husband had withdrawn from the society without reasonable excuse.

10) For getting the relief, the wife examined herself. The

husband examined himself and he examined one Police Constable to

prove the missing report given by the mother of the wife.

11) The evidence of the wife is as per the aforesaid

contentions made in the petition. In the evidence, she has stated

about the two incidents in which her father in law had allegedly

made advances to her. According to her, these incidents had taken

place in the month of January 2011. The rival contentions show that

immediately after the allegations made by the wife against father in

law, the parties started to live separate. It is the case of wife that

she was severely beaten and so, she was taken to the house of

parents by her mother, when it is the case of husband that she had

left his company on her own.

12) The wife had taken the dispute to grievance cell by

making an application dated 4.6.2011. Copy of the said application

is on record and it shows that the allegations were made mainly

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against mother in law. It was informed to the grievance cell by the

wife that she had gone to the house of parents for treatment and

after the treatment when she wanted to return to matrimonial

house, the husband refused to accept her back in the matrimonial

house. She contended that the husband was not ready to resume

cohabitation due to instigation of his parents. The submissions and

the record show that before grievance cell also the wife did not turn

up as she was missing for about one and half months and mother

had supplied false information to the grievance cell that the wife was

sick and due to that she was not coming before the grievance cell.

Such submissions were made on 11.8.2011 and 14.9.2011. The

record does not show that the wife had expressed grievance against

the father in law of aforesaid nature.

13) The record like copy of missing report given by mother is

produced and it shows that the wife had left the house of parents on

9.8.2011 without informing anybody and so, the parents were

required to be given report on 11.8.2011. The report shows that

they had made inquiry with all relatives. Thus, it needs to be

presumed that the parents had made inquiry with sister of wife, who

is resident of Alibag and only after that, they had given missing

report. The record of missing report shows that the wife was traced

at a place from Panvel tahsil on 19.9.2011 and then she was handed

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over in the custody of brother of wife.

14) In the cross examination, wife has admitted that she did

not remain present before grievance cell. When there is record that

she was traced at Palhat, Tahsil Panvel, she has given evidence that

she was with her sister at Alibag. The name of the person with

whom, she was probably living during this period is suggested to her

and even photographs of the wife taken with the said person were

confronted to her. She has only denied that she knows the person

appearing in photographs and she had stayed with that person.

These photographs are exhibited, but no evidence is given by the

wife to show that the photographs are manipulated. She could have

examined her sister and she could have produced some record to

show that for about one and half month she was living with her

sister, but that kind of evidence is not given by the wife.

15) The husband has given evidence in rebuttal. He has

given evidence which is in accordance with the aforesaid pleading in

written statement. He has examined Police Head Constable Bodke to

prove the missing report. Though Bodke has tried to say that the

wife was found at Alibag with sister, the report is otherwise and the

contents of the report do not support the oral evidence of Bodke.

When there is record, the record needs to be preferred to the oral

FCA No. 18/2013

evidence.

16) There is copy of notice given by husband to wife dated

17.11.2011. This record shows that when the wife was traced by the

police, the husband gave notice and informed that he was still ready

to accept her back in the matrimonial house. In spite of giving

opportunity, the wife did not return to the matrimonial house and

the record shows that only after publication of the notice of divorce

by the husband in newspaper, she filed proceeding under section 9

of the Act. The Family Court has used the provision of section 14 of

the Act and has considered the aforesaid material as evidence

against the wife. This Court holds that the Family Court has not

committed error in considering the aforesaid record. The learned

counsel for husband placed reliance on some observations made by

this Court in that regard in the case reported as 2013 (3) Mh.L.J.

193 [Shivanand Damodar Shanghag Vs. Sujata Shivanand

Shanbhag]. This provision empowers the Family Court to consider

some material as evidence which includes the statements and

documents and this provision is exception to the general rule of

evidence regarding admissibility of such material in evidence. Due to

these circumstances also, it was necessary for the wife to take steps

to prove that the photographs were fabricated, manipulated. In any

case, the circumstance of giving missing report by mother of the

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wife is such a strong circumstance that it has created probability as

suggested by the husband. The Family Court has used the provision

of section 23 of the Act and it has held that when the wife is wrong

doer, the benefit of the circumstances like the circumstances

available in the present matter cannot be given to her. This Court

holds that it is not possible to interfere in the finding of the Trial

Court which is on the basis of aforesaid material. The Trial Court has

held that the husband has not withdrawn from the society of the

wife. Thus, the wife has failed to prove her case. In the result, the

appeal stands dismissed. Civil Application stands disposed of.

       [ARUN M. DHAVALE, J.]          [T.V. NALAWADE, J.]



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