Poonamchand Digamber Patil vs Smt. Shilpa W/O Poonamchand Patil
2017 Latest Caselaw 3859 Bom

 0107FCAs306-307.14-Judgment                                                                  1/17


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                 FAMILY COURT APPEAL  NO. 306   OF    2014

 APPELLANT :-                         Poonamchand Digamber Patil, Aged 38 Yrs.,
                                      Occu.:   Service,   R/o   Flat   No.304,   Shivram
                                      Complex, Faras, Koadi Road, Nagpur.    

                                         ...VERSUS... 

 RESPONDENT :-                        Smt.Shilpa   w/o   Poonamchand   Patil,   Aged
                                      30   yrs.,     Occu.:   Private   Business,   R/o   C/o
                                      Shivlal   C.   Rangari   153,   Siddarth   Nagar,
                                      Teka Naka, Kamptee Road, Nagpur. 

 ---------------------------------------------------------------------------------------------------
                   Mr. S.G.Karmarkar, counsel for the appellant. 
                    Mr. A.J.Thakkar, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------

                                              WITH

                 FAMILY COURT APPEAL  NO. 307   OF    2014


 APPELLANT :-                         Poonamchand Digamber Patil, Aged 38 Yrs.,
                                      Occu.:   Service,   R/o   Flat   No.304,   Shivram
                                      Complex, Faras, Koadi Road, Nagpur.    
                                         ...VERSUS... 
 RESPONDENT :-                        Smt.Shilpa   w/o   Poonamchand   Patil,   Aged
                                      30   yrs.,     Occu.:   Private   Business,   R/o   C/o
                                      Shivlal   C.   Rangari   153,   Siddarth   Nagar,
                                      Teka Naka, Kamptee Road, Nagpur. 
 ---------------------------------------------------------------------------------------------------
                   Mr. S.G.Karmarkar, counsel for the appellant. 
                    Mr. A.J.Thakkar, counsel for the respondent.
 ---------------------------------------------------------------------------------------------------

                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    ARUN  D. UPADHYE
                                                                     ,   JJ.

DATED : 01.07.2017

0107FCAs306-307.14-Judgment 2/17

O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)

Since these appeals arise from the judgment of the Family

Court, Nagpur, dated 3.1.2014 allowing the petition filed by the

respondent - wife for a decree of Restitution of Conjugal Rights and

dismissing the petition filed by the appellant-husband for a decree of

divorce on the ground of cruelty, they are heard together and are

decided by this common judgment. By filing Family Court Appeal

No.306/2014 the appellant has challenged the part of the judgment

that allows the petition filed by the respondent for Restitution of

Conjugal Rights. Family Court Appeal No.307/2014 is filed by the

husband against the part of the judgment that dismisses the petition

filed by the appellant for a decree of divorce.

2. Few facts giving rise to these Family Court Appeals 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

5.1.2007 according to Hindu rites and customs. It is the case of the

husband in the petition filed by him for a decree of divorce that since

the inception of the marriage the wife insisted that the husband and the

wife should reside separately from the joint family of the husband. It is

0107FCAs306-307.14-Judgment 3/17

pleaded that though the husband and his family members treated the

wife with love and affection, the wife treated the parents and the

relatives of the husband with cruelty. It is pleaded that though the

husband wanted that the wife should not go to her parents' house for

her delivery, the wife insisted that she would go to her parents' house.

It is pleaded that a female child was born from the wedlock on 5.4.2008

in Harshal Maternity Home. It is pleaded that after the husband became

aware of the birth of the child he visited the hospital and took care of

the wife. It is pleaded that though the respondent has requested the

wife that she should return to the matrimonial home the wife stated

that she would join his company only after one and half month. It is

pleaded that even after one and half month from the delivery, the wife

did not return to the matrimonial home and showed disinclination to

join the company of the husband. It is pleaded that on 25.5.2008, the

wife returned to the matrimonial home at about 8:45 p.m. along with

the mother, brother and the sister-in-law of the wife and they refused to

have food in the house of the husband and ate the food that was

brought by them in the tiffin box. It is pleaded that the wife slept along

with her mother in the other bed-room and locked the door from inside.

It is pleaded that on the next day when the husband was out for his

duties, the mother of the wife quarreled with the mother of the husband

and told her that there were no arrangements in the house of the

0107FCAs306-307.14-Judgment 4/17

husband and hence her daughter was put to inconvenience. It is

pleaded that while leaving the matrimonial home the mother of the

wife abused the mother of the husband. It is pleaded that after leaving

the house, the mother of the wife went to the police station and lodged

a false report against the husband and his family members but the

police did not take any cognizance of the said report. It is pleaded that

there was a joint meeting between the parties and on 17.6.2008 in the

presence of the elderly members from the side of both the parties, the

wife had admitted about the mistakes that committed by her, including

the threats given by her to the husband and his family members. It is

pleaded that since the wife had threatened the husband on several

occasions that she would commit suicide if the parties do not separate

from the joint family, there was apprehension in the mind of the

husband that living with the wife would be harmful and injurious for

him. On the aforesaid pleadings, the husband sought a decree of

divorce on the ground of cruelty.

3. The wife filed the written statement and denied the claim

of the husband. However, the wife however did not specifically deny

the allegations levelled by the husband against the wife in paragraphs 2

to 21 of the petition. In the specific pleadings, the wife pleaded that it

was the husband who treated her with cruelty. It is pleaded that though

0107FCAs306-307.14-Judgment 5/17

the wife tried to join the company of the husband on 12.6.2008 after

his communication dated 6.6.2008, asking her to return to the

matrimonial home was received, the matrimonial house was locked and

the wife had to leave. It is pleaded that the husband used to quarrel

with the wife on petty issues. It is pleaded that when the wife asked the

husband to buy some Rakhis for her brothers and her brothers-in-law,

the husband refused to do so and started quarrelling with the wife and

beating her. It is pleaded that when the father of the wife had come to

meet the child, the husband drove him away from the house. The wife

pleaded that her father lodged the report to the police station against

the husband and his family members on 28.8.2008 that they were

harassing his daughter. It is pleaded that though the wife was legally

married to the husband she was constrained to live separately due to

the ill-treatment by the husband since 28.8.2008. The wife sought for

the dismissal of the petition filed by the husband for a decree of divorce

and on similar pleadings made a prayer in the petition filed by her for a

decree of Restitution of Conjugal Rights. The husband filed the written

statement to the petition filed by the wife for Restitution of Conjugal

Rights and denied the prayer made therein. The husband reiterated the

facts pleaded by him in his petition in the written statement filed by

him in the proceedings filed by the wife for a decree of Restitution of

Conjugal Rights.

0107FCAs306-307.14-Judgment 6/17

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

framed the issues. The husband examined himself and also examined

Vikas Niswade in support of his case. The wife examined herself and

examined Ramchandra Gajbhiye as her witness. On an appreciation of

the evidence on record, the Family Court allowed the petition filed by

the wife for a decree of Restitution of Conjugal Rights while dismissing

the petition filed by the husband for a decree of divorce on the ground

of cruelty. Two appeals are filed by the husband, one against the part of

the judgment rejecting the petition filed by the husband for a decree of

divorce and the other against the part of the judgment allowing the

petition filed by the wife for Restitution of Conjugal Rights.

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

submitted that the family court has not justified in dismissing the

petition filed by the husband for a decree of divorce and allowing the

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

submitted that the family court has not given due weightage to the

document at exhibit-31 wherein the wife had clearly admitted in the

presence of her relatives, who have also signed the document, that she

would not ill-treat the husband in future and would also not threaten to

commit suicide as she had done on the earlier occasion. It is submitted

0107FCAs306-307.14-Judgment 7/17

that merely because the wife pleaded that she had signed the document

at exhibit-31 under duress, the family court should not have accepted

the case of the wife as the said document was executed by the husband

and the wife in the presence of ten witnesses and she had further

admitted in her cross-examination that she had never raised any

objection or filed any complaint that the document at exhibit-31 was

got executed from her under duress. It is submitted that the wife had

lodged a false report in the police station that the husband had

demanded dowry from her parents. It is submitted that the family court

has not given due weightage to the police report at exhibit-111, filed by

the wife. It is submitted that a reference is made to the said document

but the said document is not considered while deciding the petition. It

is submitted that in the proceedings filed by the wife against the

husband under the provisions of the Protection of Women from

Domestic Violence Act, to a court query she had replied that she had

filed the said proceedings as the husband had made a demand for

dowry. It is submitted that there is no allegation in the written

statement of the wife that the husband had demanded dowry either

before or after the marriage. It is submitted that the wife was in the

habit of lodging false reports in the police station and also making

reckless allegations against the husband. It is submitted that it is

apparent from the evidence tendered by the husband and his witness

0107FCAs306-307.14-Judgment 8/17

that the wife had ill-treated the husband by levelling false and baseless

allegations against him and failing to prove them. It is submitted that

levelling of reckless allegations against the husband in respect of

demand of dowry and failing to prove the same would tantamount to

cruelty. It is submitted that these aspects of the matter were not

considered by the family court while dismissing the petition filed by the

husband for a decree of divorce. It is submitted that in the

circumstances of the case, since the husband has proved that the wife

had levelled false and reckless allegations against the husband and his

family members and also had lodged a false report against them in the

police station, it is necessary to grant a decree of divorce in favour of

the husband.

6. Shri Thakkar, the learned counsel for the respondent, has

supported the judgment of the family court. It is submitted that the

family court has rightly considered that exhibit-31 was executed by the

wife merely with a view to save the marriage. It is submitted that

exhibit-31 was executed by the wife under duress. It is submitted that

the family court had, therefore, rightly refused to give much weightage

to the document at exhibit-31. It is submitted that some of the reports

were lodged by the father of the wife against the husband as in the

presence of the father of the wife and his friend Ramchandra Gajbhiye

0107FCAs306-307.14-Judgment 9/17

the wife was beaten up by the husband and his relatives. It is submitted

that the reports lodged by the wife or her father against the husband

and his family members in the police station were not false. It is

submitted that the evidence on record was rightly considered by the

family court while refusing to grant a decree of divorce in favour of the

husband. The learned counsel for the wife sought for the dismissal of

the appeals.

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

perusal of the record and proceedings, it appears that the following

points arise for determination in these family court appeals :-

(I) Whether the husband proves that the wife had treated him with cruelty?

(II) Whether the husband is entitled to a decree of divorce on the ground of cruelty?

(III) Whether the wife is entitled to a decree for restitution of conjugal rights?

(IV) What order?

To answer the aforesaid points for determination, it would

be necessary to refer to the pleadings of the parties and the evidence

tendered by them. The pleadings of the parties are narrated by us in

0107FCAs306-307.14-Judgment 10/17

the earlier part of the judgment in detail. It is therefore necessary to

consider the evidence of the parties on their rival claim. The husband

has examined himself and has also examined Vikas Niswade in support

of his claim. The husband reiterated the facts pleaded in the petition in

his examination-in-chief. The husband was cross-examined on behalf of

the wife at length. We however find nothing in the cross-examination

of the husband that would falsify his case in his examination-in-chief.

Though we do not find that the husband was justified in pleading that

the wife had treated him with cruelty by refusing to stay in the

matrimonial home at the time of delivery, we find that the husband is

successful in proving some other allegations levelled by him against the

wife. Since it is very normal for the wife to stay in her parental house

at the time of the birth of the child, specially when it is the first child,

we do not find that the husband was justified in asking the wife to stay

in the matrimonial home for her first delivery. Though the allegation

made by the husband in this regard for proving cruelty by the wife is

liable to be rejected, we are inclined to accept the case of the husband

that the wife had treated the husband with cruelty by lodging false

reports against the husband in the police station. The wife has not

specifically denied the pleadings in the petition in her written

statement. There is a vague and general denial. In the specific

pleadings of the wife that are very longish, the wife has not pleaded

0107FCAs306-307.14-Judgment 11/17

that the husband demanded dowry either before or after the marriage.

The wife has not pleaded that she was beaten up with fists and kick

blows on the stomach when she was pregnant. The wife has not

pleaded in the written statement or in the petition filed by her for a

decree of restitution of conjugal rights that the husband used to beat the

wife as his demand for dowry was not fulfilled. Though there is no

pleading by the wife in this regard either in her written statement or in

the petition filed by her for a decree of restitution of conjugal rights, we

are surprised to find that such allegations are levelled by the wife

against the husband in the complaint filed by her in the police station,

at exhibit-111. The wife has levelled serious allegations against the

husband in regard to the illegal demand of dowry in the police report at

exhibit-111. It is stated by the wife in the said report that the husband

used to beat the wife by fists and kicks for not bringing gold ornaments

and the amount that was demanded. The wife stated in the report that

she was kicked on the stomach while she was pregnant. It is stated that

the husband had abused her parents and had informed them that he

would not spend a pie on the delivery. The wife stated that the parents

of the husband also harassed her physically and mentally. It is stated in

the report that the husband used to threaten the wife that he would

spoil her life if her parents did not give a plot of land and a gold

bracelet to him. The wife reported in the longish complaint that the

0107FCAs306-307.14-Judgment 12/17

husband and his family members used to demand cash, gold ornaments

and plot from her parents. Though the report at exhibit-111 was lodged

by the wife, the police did not take any cognizance of the same. Apart

from the aforesaid position, it is also worth noticing that the wife has

not levelled any such allegations either in her written statement or in

the petition filed by her for restitution of conjugal rights. In the

proceedings filed by the wife against the husband under the provisions

of Protection of Women From Domestic Violence Act, the wife had

clearly responded to a court query that she had filed the proceedings as

the husband had demanded dowry from them. It is apparent that the

allegations levelled by the wife against the husband in the complaint at

exhibit-111 are false and baseless. Had they not been so, the wife

would have repeated the said allegations in the present proceedings.

The wife, however, did not plead in the present proceedings that the

husband had demanded dowry before or after the marriage. The father

of the wife had also filed reports in the police station against the

husband and his family members. The police did not take cognizance of

any reports filed by either the wife or her father. On a reading of the

evidence of the parties, it is clear that the wife had levelled false and

reckless allegations against the husband while reporting the matter to

the police and has failed to prove them. The proceedings filed by the

wife against the husband under the provisions of the Protection of

0107FCAs306-307.14-Judgment 13/17

Woman From Domestic Violence Act are dismissed, though an appeal

filed by the wife against the said order is pending before the family

court. Be that as it may, the case of the husband that the wife has

treated him with cruelty by filing false complaints against him in respect

of the offence punishable under section 498-A of the Penal Code is

proved by the husband. Apart from the fact that the husband has

proved that the wife had lodged false complaints against him in the

police station, the husband has further proved that the wife used to

threaten the husband that she would commit suicide if he did not reside

with her separately from his joint family. Exhibit-31 is a document

signed by the husband as well as the wife. In the document executed

between the parties on 17/06/2008, the husband had stated that he

will not ill-treat the wife in future. The wife has also stated that she

would not ill-treat the husband after they start residing together again.

The wife has further stated that she would do the household work and

not fight with her in-laws. The wife further stated in the document at

exhibit-31 that she would not threaten the husband that she would

commit suicide in the manner in which she had done that earlier. From

exhibit-31, it is apparent that the wife had earlier threatened the

husband that she would commit suicide. The case of the wife that the

said document was signed by her under duress cannot be accepted. The

document at exhibit-31 was signed by the husband as well as the wife

0107FCAs306-307.14-Judgment 14/17

and was also signed by ten witnesses, some of which are the near

relatives of the wife. In the presence of her relatives, the wife could not

have signed exhibit-31 under duress. It is apparent from exhibit-31 that

the wife had threatened the husband before 17/06/2008 that she would

commit suicide if the husband did not accept her demands. It would be

very difficult for the husband to stay with the wife, who gives such

threats to the husband. A husband would be under constant pressure

and fear that the wife may act according to her threat and would

implicate the husband. The family court wrongly discarded exhibit-31

by holding that the same was signed by the wife under duress. Merely

because the wife wanted to reside with the husband, she would not

have signed on a document in which she had admitted that she had

given threats of committing suicide, if it was not really so. Moreover,

the said document is signed by ten witnesses, some of which are the

near relatives of the wife. The wife has also admitted in her cross-

examination that she had never raised any objection in regard to the

writing in exhibit-31 and had also not made any complaint in respect of

the same. Though we find that the other allegations levelled by the

husband against the wife would not be enough for granting a decree of

divorce in favour of the husband on the ground of cruelty, we find that

the wife has treated the husband with cruelty by filing false reports

against him in the police station in respect of the demand of dowry and

0107FCAs306-307.14-Judgment 15/17

physical beating and has also threatened the husband that she would

commit suicide if he did not accede to her demands. It is well settled

that levelling of false allegations against the husband and his family

members pertaining to the demand of dowry and failing to prove the

same would tantamount to cruelty. It is also well settled that giving

threats of committing suicide if the demands of the wife are not fulfilled

would also tantamount to cruelty. Since the husband has proved the

aforesaid allegations levelled by him against the wife, we find that the

husband is entitled to a decree of divorce on the ground of cruelty. The

family court did not consider these aspects of the matter in the right

perspective before holding that the husband has failed to prove his case.

It is worthwhile to note that even in the proceedings filed by the wife

against the husband under the provisions of the Protection of Women

From Domestic Violence Act, the wife had levelled reckless allegations

against the husband in respect of dowry demand. The said proceedings

are dismissed. It is also surprising that though reckless allegations are

levelled by the wife against the husband in the report made in the

police station and also before the court, in the proceedings under the

provisions of the Protection of Women From Domestic Violence Act, the

wife has not levelled any allegations of dowry demand against the

husband in the present proceedings. It is also worthwhile to note that

the wife has not specifically traversed the pleadings of the husband in

0107FCAs306-307.14-Judgment 16/17

her written statement. There is a general denial of the pleadings in the

petition filed by the husband and none of the facts pleaded by the

husband are specifically denied by the wife in her written statement.

The wife has only referred to the paragraphs in the petition filed by the

husband for a decree of divorce and has stated that the contents in the

same are denied by her. It is rightly submitted on behalf of the husband

that in the absence of specific denial by the wife, it could be held that

the allegations levelled by the husband are deemed to have been

admitted by the wife. Be that as it may, we are not answering the first

and second point for determination solely on the basis of the general

denial of the pleadings by the wife in her written statement but are

answering the same on the basis of the oral and documentary evidence

tendered by the parties on record, specially the documents at exhibits-

31, 100, 101 and 111. Having answered the first two points for

determination in favour of the husband, it would not be necessary to

specifically deal with the third point for determination, as that point

would be required to be answered in the negative and against the wife.

If the husband has proved that the wife has treated him with cruelty

and if the husband is entitled to a decree of divorce on the said ground,

it is clear that the wife would not be entitled to a decree of restitution of

conjugal rights.

0107FCAs306-307.14-Judgment 17/17

8. Hence, for the reasons aforesaid, the appeals are allowed.

The petition filed by the husband for a decree of divorce is allowed.

The marriage solemnized between the parties on 05/01/2007 is hereby

dissolved by decree of divorce. The petition filed by the wife for

restitution of conjugal rights is dismissed. In the circumstances of the

case, there would be no order as to costs. At this stage, a prayer is made

by the learned counsel for the wife for staying the effect and operation

of the judgment, as far as it grants a decree of divorce in favour of the

husband, for six weeks. The same is granted. Order accordingly.

                         JUDGE                                                JUDGE 



 WADKAR / KHUNTE