Tushar Sudhakar Gulhane vs Sau. Ujwala Tushar Gulhane
2017 Latest Caselaw 3847 Bom

FCA  257/14                                          1                             Judgment

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR.
                  FAMILY COURT APPEAL No. 257/2014
Tushar Sudhakar Gulhane,
Aged about 35 years, Occ. Presently Nil,
r/o C/o Rekha Saste, Varsova, Yari Road,
Trehkil Treet, Andheri, Mumbai.                                                 APPELLANT

                                    .....VERSUS.....

Sau. Ujwala Tushar Gulhane,
Aged about 35 years, occ. Household,
r/o C/o Narayan Ratnsa Gulhane,
Ambika Nagar, Amravati,
Tq. & Distt. Amravati.                                                              RESPONDENT

                   Shri A.C. Dharmadhikari, counsel for the appellant.
                       Shri R.K. Joshi, counsel for the respondent.

                                     CORAM :SMT.VASANTI  A  NAIK AND
                                                   A.D. UPADHYE, JJ.                  

DATE : 28 TH JUNE, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

By this family court appeal, the appellant-Husband challenges

the judgment of the Family Court, Amravati dated 01.02.2013 allowing

the petition filed by the respondent-Wife for a decree of restitution of

conjugal rights under the provisions of the Hindu Marriage Act.

2. Few facts giving rise to the 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 Amravati on

23.04.2004 according to Hindu rights and custom. It is the case of the

wife in the petition filed by her for restitution of conjugal rights that the

FCA 257/14 2 Judgment

parties resided together happily for only two months. The wife pleaded

in the petition that the husband always used to tell her that he did not

like her style of living and also her behaviour. It is pleaded that the

husband used to humiliate the wife and her family members and used to

abuse them in filthy language. It is pleaded that though the husband was

in service, he did not attend his duties regularly and whenever the wife

tried to give him an understanding, the husband used to beat her. It is

pleaded that the husband used to reside at Pune and sometimes attend

his office and sometimes without informing the wife or anybody else, the

husband used to go to Ujjain. It is pleaded that when a child was born

from the wedlock on 12.05.2006, the husband did not come to meet the

wife and the child at her parental house in Amravati. It is pleaded that

the mother of the husband had threatened the wife that if she would not

give divorce to her son, the mother of the husband would implicate the

wife and her family members in false criminal cases. It is pleaded that the

husband and his family members taunted the wife that the father of the

wife had not celebrated the marriage in style. It is pleaded that the

husband always used to taunt the wife and abuse her. The wife pleaded

about the monthly income of the husband and claimed a decree of

restitution of conjugal rights after pleading that the parties were residing

separately for nearly one and half year before the institution of the

petition by her, without any just and reasonable excuse.

FCA 257/14 3 Judgment

3. The husband denied the claim of the wife and denied each

and every adverse allegation levelled against him. The husband pleaded

that his family members gave a grand reception at Ujjain after the

marriage. It is pleaded that after the marriage, the parties started

residing together at Pune in a rented house. It is pleaded that after some

time, the mother of the husband purchased a flat at Chinchwad, Pune

after securing loan from the H.D.F.C. Bank. It is pleaded that the

husband purchased television, D.V.D. Player, Food Processor after

securing a loan for purchasing the same. It is pleaded that though the

husband had some physical disability, he performed his job satisfactorily

and also took private tuitions with a view to earn more money. It is

pleaded that when the wife had gone to Amravati for delivery, the

husband had sent the amount required for the said purpose by money

order. It is pleaded that the statements made by the wife in the petition

are false and baseless. It is pleaded that the wife left the matrimonial

home on 12.11.2007 without informing the husband or anybody else and

carried all her belongings and ornaments along with her. It is pleaded

that the wife is residing in her parental home since 12.11.2007. It is

pleaded that in December-2008, the wife forcibly started residing in the

flat purchased by the mother of the husband and then filed proceedings

against his mother and his two aunts under the provisions of Section 498-

A of the Penal Code. It is pleaded that though there was no problem with

the eyes of the wife, since the husband had a problem to one of the eyes,

FCA 257/14 4 Judgment

the wife deliberately, with a view to insult and humiliate the husband,

used to talk to him by showing that there was problem to one of her eyes

also. The husband pleaded that the wife used to abuse him in filthy

language and humiliate him for no reason. It is pleaded that when the

husband used to return to his house from the office, in stead of permitting

him to take any rest, the wife used to taunt him and ensure that he did

not have any peace of mind. It is pleaded that the wife never prepared

food for him after he returned from office and was in a habit of

quarrelling with him during the night hours. It is pleaded that the wife

used to sometimes catch the collar of the shirt of the husband and push

him. It is pleaded that on a number of occasions, the shirt of the husband

was torn because of this. The husband pleaded that the wife always

pestered the husband that he should register the flat purchased by his

mother in the name of the wife. It is pleaded that when the one of the

legs of his mother was fractured at Tirupati and he brought his parents to

Pune for rest, the wife did not permit them to reside in the matrimonial

house and, therefore, they were required to stay in the house of their son-

in-law Shri Rajesh Dehankar. The husband pleaded that the wife had

cheated them by informing them that her date of birth is 23.12.1974

though she was born on 23.12.1973 and gave a false horoscope to the

husband's parents. It is pleaded that the wife left the matrimonial home

on her own accord and she was not entitled to a decree of restitution of

conjugal rights, more so when she has treated the husband with cruelty.

FCA 257/14 5 Judgment

4. On the aforesaid pleadings of the parties, the Family Court

framed the issues. The wife tendered the evidence on affidavit and was

cross-examined on behalf of the husband. The husband also examined

himself. On an appreciation of the evidence on record, the Family Court

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

rights. The judgment of the Family Court is challenged by the husband in

this appeal.

5. Shri Dharmadhikari, the learned counsel for the husband,

submitted that the Family Court has committed a serious error in allowing

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

submitted that the parties had separated on 12.11.2007 when the wife

left the matrimonial home on her volition as could be seen from the cross-

examination of the wife. It is submitted that in the petition filed by the

wife for restitution of conjugal rights, the wife has levelled serious

allegations of the ill-treatment meted out by the husband to her. It is

submitted that the allegations levelled by the wife against the husband

are clearly false and baseless as had the husband really beaten the wife

without any rhyme or reason, the wife would not have been eager to

reside with the husband. It is submitted that as soon as the wife became

aware that the husband had filed proceedings against her for a decree of

divorce on the ground of cruelty, the wife went to Pune and lodged a

false first information report against the mother-in-law and the two aunts

FCA 257/14 6 Judgment

of the husband. It is submitted that it is apparent from a reading of the

first information report that the same is filed against the three old women

merely with a view to trouble them and to ensure that the husband does

not secure a decree of divorce. It is submitted that had the husband's

mother and aunts harassed the wife after she was married as stated in the

first information report, the wife would have filed the first information

report immediately after the ill-treatment and not in December-2008

when the parties had separated for more than one year. It is submitted

that the wife had tried to create evidence by retaining the photostat

copies of the letters written by her to the husband, his aunt, his doctor

and his lawyer at Ujjain and had produced the same before the Family

Court merely with a view to make a show that she was ready and willing

to reside with the husband in the matrimonial home and was eagerly

waiting for him. It is submitted that the wife had treated the husband

with cruelty. It is submitted that the Family Court failed to consider that

the wife could not have been permitted to take advantage of her own

wrong, specially when she had filed a false and baseless first information

report against the three old ladies in the family of the husband. It is

submitted that the mother and the aunts of the husband are acquitted in

the criminal proceedings under the provisions of Section 498-A of the

Penal Code. It is submitted that it is apparent from the cross-examination

of the wife that the wife is not desirous of telling the truth before the

Court and has falsely levelled baseless allegations against the husband

FCA 257/14 7 Judgment

and his family members. It is submitted that in the circumstances of the

case, the Family Court ought to have dismissed the petition filed by the

wife for a decree of restitution of conjugal rights.

6. Shri Joshi, the learned counsel for the wife, has supported the

judgment of the Family Court. It is submitted that the Family Court has

considered the evidence tendered by the parties in the right perspective to

grant a decree of restitution of conjugal rights in favour of the wife. It is

submitted that the wife was always desirous of residing with the husband

and, therefore, after a son was born on 12.05.2006, the wife went to Pune

and started residing in the flat purchased by her mother-in-law. It is

submitted that while residing in the said flat at Pune, the wife wrote more

than a couple of communications to the husband at Ujjain asking him to

return to the matrimonial home at Pune. It is submitted that the wife had

not filed a false first information report against the husband's mother and

his aunts. It is submitted that the first information report was filed after

the wife went to the matrimonial home in Pune where she was ill-treated

by her mother-in-law and the two aunts of the husband. It is stated that

the first information report was lodged in view of the incident, dated

13.05.2009 when the mother and the aunts of the husband had assaulted

the wife and had thrown her out of the matrimonial home. It is

submitted that the said first information report was filed as the mother-in-

law had asked the wife to get a sum of Rupees One Lakh on 13.05.2009.

FCA 257/14 8 Judgment

It is submitted that the first information report cannot be said to be false

merely because the accused have been acquitted of the offence punishable

under Section 498-A of the Penal Code. It is submitted that it is apparent

from the communications issued by the wife to the husband from Pune to

Ujjain that the wife was always desirous of residing with the husband. It

is submitted that all was well with the husband and the wife till they

separated and they had even celebrated certain family functions and the

first birthday of their son together. It is submitted that it could be clearly

proved from the letters admittedly written by the wife to the husband that

the wife was desirous of residing with the husband under one roof and

was ardently in love with the husband and was yearning for his company.

The learned counsel for the wife relied on the judgment of the Gujarat

High Court reported in AIR 1975 Guj 158. It is submitted that the

husband has failed to substantiate the allegations levelled by him against

the wife by tendering cogent evidence before the Family Court. It is

pleaded that some of the allegations levelled by the husband against the

wife that she used to taunt him, that she used to catch the collar of the

shirt of the husband as a result of which several shirts of the husband

were torn, are not proved by the husband by tendering the evidence of his

relatives. It is submitted that if the wife had treated her in-laws badly,

the husband ought to have examined some relatives in support of his

case. The learned counsel sought for the dismissal of the appeal.

FCA 257/14 9 Judgment

7. On hearing the learned counsel for the parties and on a

perusal of the Record & Proceedings, it appears that the following points

arise for determination in this family court appeal:-

I) Whether the wife proves that the husband has deserted the

wife without any just or reasonable excuse?

II) Whether the wife was entitled to a decree of restitution of

conjugal rights?

III) What order?

8. 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 narrated the pleadings of the parties in

detail, in the earlier part of the judgment. On a reading of the pleadings

in the petition, it is difficult to gauge whether the petition filed by the

wife is a petition for a decree of restitution of conjugal rights or whether

it is a petition filed by her for a decree of divorce. The wife has pleaded

in the petition filed by her that only for two months after the

solemnization of the marriage, the husband had treated her well and

thereafter the husband and his family members started ill-treating her.

The wife has pleaded that the husband had not only quarreled with her

and abused her and her family members in filthy language but had also

beaten her, as and when the wife tried to give an understanding to the

FCA 257/14 10 Judgment

husband that he should regularly go to the office to earn for the family.

The wife has pleaded that the wife was harassed by the husband and his

family members as her parents had not performed the marriage in style.

It is pleaded by the wife that the husband had abused and assaulted the

wife on several occasions. We normally find such type of pleadings in a

petition filed by a spouse for a decree of divorce and not for a decree for

restitution of conjugal rights. The wife has tried to paint a picture that

the husband had started harassing her within two months of her marriage

and that he was abusing and beating her. We find that the allegations

levelled by the wife against the husband in the petition may not be true.

If they were true, the wife would not have clamoured to live with the

husband under one roof.

9. Be that as it may, it would now be necessary to consider

whether the husband was guilty of deserting his wife and not staying in

her company at Pune. It would be necessary to consider the conduct of

the wife and whether she is entitled to a decree of restitution of

conjugal rights. The wife has relied on the three letters (inland letters)

written by her to the husband from Pune to Ujjain. The letters are

addressed to the husband, his counsel and his doctor. These letters

are placed by the wife on record to show that the wife desired that

the husband should come to Pune and reside in the matrimonial home.

We are surprised that the wife has addressed the letters not only to

FCA 257/14 11 Judgment

the husband but also to his lawyer, doctor, etc. Normally, a spouse, a

woman or a man, would not retain the photostat copies of the

communications exchanged between them if all is well between them. In

our considered view, these letters are written by the wife to the

husband and copies thereof are sent to his lawyer and others merely

with a view to create evidence that she desired to stay with the husband

at Pune. Much weightage cannot be given to such letters, specially

when the said letters were written by the wife to the husband for

creating the evidence that she desired to live with him in the matrimonial

home after the husband expressed his intention to dissolve the

marriage. We have perused all the three communications - letters. These

letters do not show that something was wrong between the parties. In

these letters, the wife has written that for a long time, the husband

has not returned to the house at Pune and that he should return to

Pune and reside with her in the matrimonial home. These letters

cannot be considered as a weighty piece of evidence in favour of the

wife for granting a decree of restitution of conjugal rights in her favour.

On a reading of the cross-examination of the wife, we find that the wife

had left the matrimonial home on her volition. The wife had admitted in

her cross-examination that she had left the matrimonial home along

with her father on 12.11.2007 and was residing with her parents since

then. The wife had not specifically mentioned in the petition as to when

she had left the matrimonial home and/or whether she was driven out

FCA 257/14 12 Judgment

of the matrimonial home by the husband. It was necessary for the wife

to plead in the petition the manner in which the parties had separated

before the institution of the petition for restitution of conjugal rights.

The husband has clearly pleaded in the written statement that the wife

had left the matrimonial home on her own accord and the case of the

husband in that regard is admitted by the wife in her cross-examination

that she had left the matrimonial home on 12.11.2007 along with her

father and she had started residing in her parental home at Amravati.

After leaving the matrimonial home, the wife had lodged a false first

information report against the husband's mother and his two aunts. We

have perused the first information report which is an exhibited

document. In the first information report, the wife has stated that

immediately after the solemnization of the marriage, the mother and the

aunts of the husband started ill-treating her as her parents had not

solemnized the marriage between the parties with pomp and splendour.

It is stated in the first information report that when the wife was residing

in the matrimonial home, the mother and the aunts of the husband

used to abuse and beat the wife. It is stated in the first information report

that the mother of the husband never provided food to her and quarreled

with her for no reason. The wife has stated in the first information

report that on the say of his mother, the husband has filed proceedings

against her for a decree of divorce at Ujjain. The wife had stated that

though she was asked to remain present in the Court on 11.05.2009,

FCA 257/14 13 Judgment

she could not attend. It is stated in the first information report that on

13.05.2009, when she went to the matrimonial home at Pune, her

mother-in-law and her two sisters were in the house. It is stated that

when she tried to enter the matrimonial home, her mother-in-law and

her two sisters abused the wife in a filthy language and assaulted her. It

is stated that the three ladies pushed her out of the matrimonial home

and, hence, she was constrained to lodge a first information report

against them. We find that by filing a false first information report

against the mother and the aunts of the husband, in fact the wife has

treated the husband with cruelty. If the wife was really treated badly

by her in-laws and was harassed by them while she resided with them in

the matrimonial home, the wife would have filed the first information

report against them at that juncture. If not then, the wife would have at

least filed the first information report when the parties separated on

12.11.2007 as pleaded by the husband and as admitted by the wife in

her cross-examination. The wife, however, did not lodge any report

against her in-laws till the husband filed the proceedings against her for a

decree of divorce. It is apparent that a false first information report is

filed by the wife against the old ladies merely with a view to harass

them as the husband had lodged the proceedings against her for a decree

of divorce. The husband's mother and aunts have been acquitted in the

criminal proceedings. We are not inclined to consider the findings

recorded by the trial Court while acquitting the three women in the

FCA 257/14 14 Judgment

criminal proceedings. However, on the basis of the evidence tendered

by the parties in this case, we are firmly of the view that the first

information report was lodged by the wife against the three women

merely with a view to teach them a lesson after the husband had filed

the proceedings against her for a decree of divorce. We find that it was

wrongful on the part of the wife to have filed a false first information

report against the three women, specially when two of the women were

in government service, as admitted by the wife in her cross-examination.

It is the case of the husband that the aunt expired due to the lodging of

the false first information report by the wife against her. Though it was

suggested to the husband that one of his aunts died due to cancer and

not due to the lodging of the report, the husband has clearly denied the

suggestion and has stated that though his aunt was suffering from

cancer, she did not die of that disease and died because the wife had

harassed her by lodging a false first information report against her. On a

reading of the evidence of the wife, we find that the wife has

unnecessarily levelled serious allegations against the husband in the

petition filed by her for restitution of conjugal rights. Had the husband

really treated her so badly, i.e. had he abused her in filthy language

and had beaten her very often, the wife may not have filed the petition

for restitution of conjugal rights. The case of the wife that the husband

was harassing her is falsified by the admissions of the wife in the cross-

examination. The wife has admitted in her cross-examination that the

FCA 257/14 15 Judgment

Sankrant ceremony and the first birthday of their son was celebrated

by the parties just a few months before the separation. The first birthday

of the son of the parties must have been celebrated just a couple of

months before the parties separated. Some photographs are placed by

the husband on record to show that the parties had happily participated

in some functions and programmes in the matrimonial home and had

also celebrated the first birthday of their son together. If that is so, we

fail to digest that the husband must be taunting the wife, abusing her

and beating her, time and again. In fact, the husband has levelled several

allegations against the wife in respect of the ill-treatment meted out by

her to him. We are, however, not inclined to go into the correctness or

otherwise of those statements. Suffice it is to state that the husband

has proved that the wife has made false allegations against the husband

and had also lodged a false complaint against the mother and the two

aunts of the husband for an offence punishable under Section 498-A of

the Penal Code. The lodging of the false complaint against the old

ladies must have caused great mental agony to them and the husband,

as pleaded by the husband in his written statement. Filing of the false

complaint may have resulted in causing a reasonable apprehension in

the mind of the husband that the wife may file such false complaints in

future. In the circumstances of the case, specially when the wife has

filed a false complaint against the three women in the family of the

husband which has resulted in their prosecution and their acquittal, a

FCA 257/14 16 Judgment

decree of restitution of conjugal rights cannot be passed in favour of

the wife. It is apparent that the wife has levelled false allegations

against the husband and his family members. It is possible that the

allegations and the false complaints must be an outcome of a wrong

advice given to the wife by her relatives and friends. However, since

we find that the wife has levelled reckless allegations against the

husband and has failed to prove them and has filed a false complaint

against the husband's family members that had resulted in their

prosecution, the wife would not be entitled to a decree of restitution of

conjugal rights. We find that the wife has treated the husband with

cruelty and the husband had sufficient cause for staying away from the

wife. A decree of restitution of conjugal rights cannot be granted in

favour of the wife when the wife was at fault. The Family Court did

not consider the evidence on record in the right perspective before

passing a decree of restitution of conjugal rights in favour of the wife.

It was necessary for the Family Court to have given due weightage to

the pleadings of the wife in the petition, certain admissions of the wife in

the cross-examination as also the filing of the first information report

by the wife against the three women in the family of the husband

after the husband filed the petition against the wife for a decree of

divorce, before allowing the petition filed by the wife. In the

circumstances of the case, the judgment of the Family Court is liable to be

set aside.

FCA 257/14 17 Judgment

10. Hence, for the reasons aforesaid, the appeal is allowed. The

judgment of the Family Court, Amravati, dated 01.02.2013 is hereby set

aside. The petition filed by the wife for a decree of restitution of conjugal

rights stands dismissed. In the circumstances of the case, there would be

no order as to costs.

              JUDGE                                     JUDGE
APTE