Mahendra Kaduba Wahule vs Reena Mahendra Wahule
2017 Latest Caselaw 9649 Bom

                                                              FCA No. 17/2017
                                        1


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

                         FAMILY COURT APPEAL NO. 17 OF 2017

Mahendra s/o Kaduba Wahule,
Age: 30 years, Occu: Private Service,
R/o : Siddharth Nagar, N-12, HUDCO,
Aurangabad.                                         ....Appellant

                        Versus

Reena w/o Mahendra Wahule,
Age: 26 years, Occu: Household,
R/o C/o Sheelabai Bhimrao Jadhav,
Siddharth Nagar, Near Shubham Provision,
N-12, HUDCO, Aurangabad.                            ....Respondent



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


                                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 against judgment and order of

proceeding No. A-154/2014, which was pending before the Family

Court Aurangabad. The proceeding filed under section 13 of the

Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for

short) for divorce is dismissed by the Family Court. Both the sides

are heard.

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

present proceeding can be stated as follows :-

The relevant dates and incidents for the present purpose

can be given as follows :-

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

(ii)    February 2011            -   Parties started living separate from

                                     each other.

(iii)   27.9.2013 -                  The date of decision of the proceeding

                                     filed by wife under section 9 of the Act.

(iv)    10.4.2014 -                  The date of filing of proceeding of

                                     divorce by husband.



3)              The proceeding for divorce is filed on the grounds of

cruelty, desertion and illicit relations of the wife with a person. The

said person is named in the petition by the husband. It is his

contention that right from the beginning, the wife was not ready to

cohabit with him, she used to return to parents' house and on

inquiry, she admitted that she had affair with the said person and

she had married with the present petitioner only due to insistence of

her mother and brother.

4) It is the case of husband that after starting of separate

residence, the wife had approached the grievance cell created for

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woman and there, when he was ready to accept back her in

matrimonial house, she went to her lover and she stayed with him.

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

missing report and ultimately, she was traced at Talhat, Tahsil

Panvel, District Raigad. It is his case that police handed over the

custody of the wife to her brother after she was traced.

5) It is the case of husband that probably the wife has

married with the person named in the petition and she stayed with

him during aforesaid period. It is his case that as the wife has stayed

with third person, there is no desire to the petitioner to continue the

relationship.

6) It is the case of husband that with malafide intention,

wife had made false allegations against his father and that was done

by her only to leave his company. It is his case that due to the

conduct of the wife, his entire family is defamed and he has started

thinking that he will not happy if the relationship is continued. On

this ground, he claimed the relief of divorce. He also mentioned the

circumstance like dismissal of the proceeding which was filed by wife

under section 9 of the Act for getting divorce.

7) The wife filed written statement and denied the aforesaid

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allegations. She contended that the decision given by the Family

Court against her in proceeding filed under section 9 of the Act is

challenged by her by filing appeal. It is her case that illtreatment

was given to her by husband and relatives of husband and even

demand of dowry of Rs.50,000/- was made from her parents. It is

her case that when the husband refused to accept her back in the

matrimonial house, she approached the grievance cell prepared for

women. It is her case that during those days, she was under mental

stress and so, she had left the house of her mother and she had

gone to Alibag to live for few days with her sister. It is her case that

she was not missing and she was living with her sister at the

relevant time. It is her case that this circumstance was misused by

the husband and rumours were spread that she had left the station

with her boy-friend.

8) For getting the relief, the husband has examined himself.

He has deposed that he made inquiry with wife as to why she was

not interested in cohabiting with him and the wife informed to him

that she had married with him due to insistence of her mother and

brother and she had a love affair with a man mentioned by the

husband in the petition. He has deposed that due to this reason, the

wife started picking up quarrels with his relatives. He has deposed

that after leaving his company, the wife had approached to

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grievance cell and there he had expressed willingness to accept her

in the matrimonial house. He has deposed that even when the

proceeding was pending before grievance cell, the wife left the house

of her parents on 9.8.2011 without informing anything to mother or

brother and due to that her mother was required to give missing

report on 11.8.2011 to CIDCO Police Station. He has deposed that

police searched for her and ultimately, they traced her at Palhat,

Tahsil Panvel and they brought her from Palhat and handed her over

to her brother. Husband has deposed that this circumstance is

considered by Family Court in proceeding No. A-106/2012, which

was filed by wife for restitution of conjugal rights.

9) The husband has deposed that due to the conduct of the

wife of aforesaid nature, he and his family members are defamed in

the society and he is feeling that he will never be happy in the

company of the wife.

10) In rebuttal, the wife has given evidence which is in

accordance with the aforesaid contentions made in the written

statement. She has given evidence that after the marriage the

demand of dowry was made by saying that sufficient amount was

not given as dowry at the time of marriage. She has given evidence

that in January 2011 when her husband was out of station, her

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father in law made advances with bad intention towards her. She has

deposed that due to the incident she called her mother to the house

of parents and she went with her mother to the house of her

parents. She has deposed that she was reluctant to go to the house

of her parents, but the relatives of the husband like her in laws

insulted her mother and as the in laws said that they would

reconsider the matter after few days, she went to the house of her

mother. She has given evidence that after 7-8 days she had made

an attempt to return to matrimonial house, but in laws had refused

to take her back in the matrimonial house. She has given evidence

that the cousin of her father in law then took her to matrimonial

house, but the father in law repeated the incident against her. She

has deposed that she disclosed the incident to her husband, but the

husband did not believe her and said that she was making false

allegations against her father. She has deposed that due to these

incidents she was under mental stress and so, she went to her sister,

who is resident of Alibag and she stayed there for about 15 days.

She has deposed that she had returned to the house of her mother

after 15 days and after that the husband started saying that she had

eloped with her boy-friend and so, he was not ready to accept her

back in the matrimonial house. She has deposed that the husband

then published notice of divorce in newspaper. She deposed that she

is still ready to resume cohabitation and false allegations are made

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by the husband only to avoid resumption of cohabitation and also for

getting divorce.

11) The evidence on record shows that even after the

aforesaid incident, the incident of missing of wife for about one and

half months, the husband had given notice to the wife and he had

asked her to return to matrimonial house. The husband then gave

notice in newspaper that he wanted to take the divorce and after

that the wife filed proceeding under section 9 of the Act. It can be

said that when the husband gave notice in newspaper that he

wanted to take divorce, the wife filed proceeding under section 9 of

the Act. It can be said that the husband, who has made such serious

allegations, had shown willingness to accept her back in the

matrimonial house, but, the wife took steps only when he published

notice of divorce.

12) It is true that the evidence of husband shows that he had

never seen the person who is named in the petition as boy-friend of

the wife. The said person is not made party to the present

proceeding. The Family Court has rightly observed that due to this

circumstance, divorce cannot be given on the ground of adultery.

13) In the evidence, wife has made serious allegations

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against the father of husband. She has examined her mother

Shilabai in support of her case and she has given similar evidence.

The mother has tried to say that due to mental stress without

informing to her, the wife had gone to her sister, to Alibag and as

she could not notice the wife in her house, she had given missing

report. This version cannot be believed as in the missing report itself

it was mentioned that after making inquiry, the mother had given

missing report. Thus, the evidence of wife and her mother shows

that they are not disputing the circumstances like making of

allegations against father in law by wife and leaving of station by the

wife due to which her mother was required to give missing report. It

is also not disputed that since February 2011 the parties are living

separate from each other. The divorce proceeding came to be filed

on 10.4.2014, after the requisite period of desertion.

14) There is provision of section 14 in the Act which enables

the Family Court to consider the oral evidence and documents, which

may not be admissible as per the general law of evidence, but the

decision of the Family Court given in a proceeding which was filed

under section 9 of the Act is ignored by the Family Court in the

present matter. In the proceeding filed under section 9 of the Act,

there was the issue, whether the husband had withdrawn from the

society of wife when there was no sufficient excuse and this issue

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was answered against the wife by Family Court.

15) Today this Court dismissed the appeal filed by wife

against the said decision (Family Court Appeal No. 18/2013). It is

true that the photographs which were considered by the Family

Court in the previous proceeding and the record of missing report

which was also considered by the Family Court in that proceeding

was not produced in the present matter. But the issue about

separate residence was considered by the Family Court in previous

matter and the finding of the Family Court on that issue could have

been considered as one of the circumstance for ground of desertion.

There are allegations of the wife that father of the husband had

made advances towards her and there is nothing with her to

substantiate those allegations. Even specific dates of both the

incidents are not mentioned in the pleading. This circumstance can

be considered for considering the ground of cruelty. Further, leaving

of the station by married women without informing anything to

anybody including the mother due to which her mother was required

to give missing report is also a circumstance which defames both the

families. This circumstance also can be considered for ground of

cruelty. When the period was one and half months, the wife has

given evidence that she stayed with her sister for about 15 days.

Thus, even in the evidence, she has not explained as to where she

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was for the remaining period. This Court holds that those

circumstances could have been considered by the Family Court. The

evidence of wife that she stayed in the matrimonial house only for

one month and after that she stayed in the house of her parents can

be used for proving the ground of desertion. The allegation made by

her about the demand of dowry and the illtreatment which she was

allegedly receiving from parents of the husband and husband are

also very vague in nature and in the cross examination also, she

could not give the particulars of so called illtreatment. The mother of

the wife has admitted in the cross examination that husband was

ready to take her back to the matrimonial house and he had

expressed that before grievance cell also. Only after that the wife

left the station and went to aforesaid place. On 11.8.2011 the

husband was to take the wife to matrimonial house, but she left the

station on 9.8.2011 and due to that the mother was required to give

missing report on 11.8.2011. These circumstances are sufficient to

infer that the wife had no desire to resume cohabitation. The

circumstances are also sufficient to prove the cruelty. This Court

holds that the Trial Court has committed error in not giving decree of

divorce in favour of husband on the ground of desertion and cruelty.

16) In the result, the appeal is allowed. The judgment and

order of the Family Court in Petition No. A-154/2014 is hereby set

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aside. The petition filed by husband for divorce on the ground of

cruelty and desertion is allowed. The marriage between the

husband, present appellant and the wife, present respondent stands

dissolved. The costs shall be the cost in the cause. Decree is to be

prepared accordingly.

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



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