Sau. Sangita Mahendra Bhatukule vs Mr. Mahendra Uttamrao Bhatukule
2017 Latest Caselaw 3933 Bom

FCA  345/14                                             1                              Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.
                   FAMILY COURT APPEAL No. 345/2014
Sau.Sangita Mahendra Bhatukule,
aged about 36 years, Occu. Teacher,
R/o Ganesh Vihar Colony, Amravati,
Tq. Amravati, Distt. Amravati (M.S.).                                               APPELLANT

                                      .....VERSUS.....

Mahendra Uttamrao Bhatukule,
aged about 38 yrs, Occ. Agriculturist,
R/o Morshi, Tq. Morshi,
Distt. Amravati (Maharashtra).                                                      RESPONDENT

                        Shri R.R. Vyas, counsel for the appellant.
                    Mrs. S.W. Deshpande, cousnel for the respondent.


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

DATE : 4 TH JULY, 2017.

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

By this family court appeal, the appellant - wife has

challenged the judgment of the Family Court, Amravati dated 31.03.2010

dismissing the petition filed by the appellant for a decree of divorce under

Section 13 (1)(ia)(ib) of the Hindu Marriage Act.

2. Few facts giving rise to this family court appeal are stated

thus : -

The appellant-wife and the respondent - husband were

married at Amravati on 22.05.1994 according to Hindu rites and customs.

After the solemnization of the marriage, the wife started residing with the

FCA 345/14 2 Judgment

husband at Morshi. It is the case of the husband in the petition filed by

him for a decree of divorce on the ground of cruelty and desertion that

the parties were residing together in the joint family of the husband as

the husband is the eldest son of his parents and he had to look after them.

It is pleaded that the wife always told the husband that she did not wish

to marry him and that she did not wish to live with him in a village like

Morshi. It is pleaded that the wife used to abuse the old parents of the

husband and also his brothers. It is pleaded that the wife talked to the

husband and his family members arrogantly and never treated them well.

The wife asked the husband that he should leave Morshi and start living

with her parents at Amravati. It is pleaded that the wife used to

frequently visit her parents without intimating the husband and his family

members. It is pleaded that on petty matters the wife used to pick up

quarrel with the husband and used to leave the house without informing.

It is pleaded that the wife used to leave the house and not return for

about two or three days without informing the husband and his parents.

It is pleaded that the wife used to threaten the husband that she would

commit suicide and implicate the husband in a false criminal case. The

husband pleaded that the wife had filed false reports against the husband

under the provisions of Section 498 A and Section 506 of the Penal Code.

It is submitted that the police had registered an offence against the

husband under Section 107 of the Code of Criminal Procedure on the say

of the wife. It is submitted that a false report was filed against the

FCA 345/14 3 Judgment

husband by the wife for the offences punishable under Sections 506, 508

and 509 of the Penal Code. It is stated that the wife had maliciously filed

a case against the husband for recovery of Rs.2,00,000/-, but the suit was

dismissed on 14.06.2000. It is pleaded that the wife had filed proceedings

against the husband under the provisions of Section 18 of the Hindu

Adoption and Maintenance Act. It is pleaded that a private complaint was

also filed by the wife against the husband under Section 405 of the Penal

Code. It is pleaded that the wife had filed a complaint against the

husband and his relatives under Section 494 of the Penal Code but the

husband's relatives were discharged in the said case. The husband

pleaded that the action on the part of the wife of falsely implicating the

husband in several criminal cases has caused great mental agony to the

husband. The husband therefore sought a decree of divorce on the

ground of cruelty and desertion. The husband pleaded that the husband

was entitled to a decree of divorce on the ground of desertion as the wife

had left the company of the husband and had deserted him since

12.01.1996.

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

the husband. The wife denied that she had treated the husband with

cruelty. The wife denied that she had abused the husband and his old

parents and that she wanted to reside in her parental house and did not

wish to reside in the matrimonial home at Morshi. The wife stated in the

FCA 345/14 4 Judgment

additional pleadings that the husband and his family members used to

make a demand of money from the parents of the wife which they could

not have fulfilled. It is pleaded that the husband had treated the wife with

cruelty. It is pleaded that because of the ill-treatment meted out by the

husband and his family members to her she had filed the proceedings

under Section 498 A of the Penal Code and had also lodged a complaint

against the husband for an offence punishable under Section 494 of the

Penal Code as he had illegally performed a second marriage. The wife

sought for the dismissal of the petition filed by the husband.

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

framed the issues. The husband examined himself and the wife examined

herself. On an appreciation of the evidence on record, both oral and

documentary, the Family Court allowed the petition filed by the husband

after holding that the wife had treated the husband with cruelty and had

left his company without any just or reasonable excuse. The judgment of

the Family Court is challenged by the appellant - husband in this family

court appeal.

5. Shri Vyas, the learned counsel for the wife, submitted that the

Family Court was not justified in granting a decree of divorce in favour of

the husband. It is submitted that the Family Court has wrongfully held

that the wife had lodged false reports and complaints against the husband

FCA 345/14 5 Judgment

which had resulted in inflicting cruelty on him. It is submitted that

merely because the husband and his family members were acquitted in

the prosecution that were launched against them, it cannot be said that

the reports filed by the wife were false. It is submitted that the Family

Court was not justified in holding that the wife had treated the husband

with cruelty by launching several false cases against him and his family

members. It is stated that the Family Court was not justified in holding

that the wife had deserted the husband and the husband was, therefore,

entitled to a decree of divorce on the ground of desertion. It is submitted

that in the circumstances of the case, and on the basis of the evidence on

record, the petition filed by the husband was liable to be dismissed.

6. Mrs.Deshpande, the learned counsel for the husband, has

supported the judgment of the Family Court. It is submitted that the wife

had lodged several false cases against the husband under various

provisions of the Indian Penal Code and the Code of Criminal Procedure.

It is submitted that the wife had filed false cases against the husband

under the provisions of Section 506, 508, 509, 498-A and 494 of the

Indian Penal Code. It is submitted that on the false report lodged by the

wife, the police had registered an offence against the husband under

Section 107 of the Code of Criminal Procedure and the husband was

acquitted in the said matter. It is stated that the proceedings filed by the

wife against the husband under section 498-A and 506 of the Penal Code

FCA 345/14 6 Judgment

was dismissed. It is submitted that the husband was also acquitted in the

criminal case under Section 506, 508 and 509 of the Penal Code. It is

submitted that a private complaint under Section 405 of the Penal Code

was lodged against the husband and after this appeal was filed, the said

case is also dismissed. It is submitted that in the complaints filed by the

wife, the wife had levelled false and baseless allegations against the

husband and his family members. It is submitted that the Family Court

has rightly disbelieved the case of the wife that she was compelled to

leave the matrimonial home. It is submitted that the Family Court has

rightly considered the evidence tendered by the parties on record,

specially the false complaints lodged by the wife against the husband and

his family members and the judgments of the trial Court acquitting the

husband and his family members, to hold that the husband was entitled

to a decree of divorce as it was not possible for him to live with the wife

under one roof. The learned counsel sought for the dismissal of the

appeal.

7. On hearing the learned counsel for the parties, it appears

that the following points arise for determination in this family court

appeal:-

I) Whether the husband has proved that the wife had treated

him with cruelty?

 FCA  345/14                                          7                          Judgment

II)           Whether the husband has proved that the wife had deserted

              him without any just or reasonable excuse?

III)          Whether the husband is entitled to a decree of divorce on the

              ground of cruelty and desertion?

IV)           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 the

earlier part of the judgment. In support of his case, the husband

examined himself. The husband stated in his evidence on affidavit that

the wife always told him that she was not ready to marry him and that

the husband should leave his family and start residing with her parents at

Amravati. The husband stated in his evidence that the wife used to leave

the matrimonial home without informing the husband and his family

members and stayed in her parental home for several days. It is stated

that the wife used to abuse the husband and his parents and also

threatened them that she would commit suicide and implicate them in

false criminal cases. The husband stated that the wife had lodged a false

report against him in the police station on 06.11.1996. It is stated that

though the husband still made sincere efforts to ensure that the wife

resides in the matrimonial home, the wife did not join his company. It is

stated in the evidence that an offence was registered against the husband

FCA 345/14 8 Judgment

under the provisions of Section 107 of the Code of Criminal Procedure on

the report of the wife and the Tahsildar had acquitted him in the said

matter. It is stated that the proceedings filed against the husband and his

family members under Section 498-A and 506 of the Penal Code had been

dismissed and the husband and his family members were acquitted. It is

stated that the wife had not only filed the proceedings against the

husband and his family members under Section 498-A and 506 of the

Penal Code but was also instrumental in initiating proceedings against

him under Section 506, 508 and 509 of the Penal Code. It is stated that

in both the proceedings, the husband and his family members were

acquitted. It is stated that the wife has withdrawn from the company of

the husband without any just and reasonable excuse and hence the

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

desertion.

The husband was cross-examined on behalf of the wife. The

husband admitted in his cross-examination that the wife was the daughter

of his real paternal uncle. The husband admitted that the marriage was

fixed with the blessings and consent of all the elderly persons in both the

families. The husband admitted that even before his marriage, he was

staying in his maternal uncle's house for his education. The husband

admitted that a decree for payment of Rs.2,000/- towards maintenance

was passed against the husband in the proceedings filed by the wife for

grant of maintenance. The husband admitted that the wife had filed

FCA 345/14 9 Judgment

reports against the husband and several members of his family for an

offence punishable under Section 494 of the Penal Code. The husband

denied the suggestion that he had beaten the wife and had driven her out

of the matrimonial home in the year 1997. The husband admitted that

since 1997, he was always in the Court as several cases were filed by the

wife against him. The husband denied the suggestion that he had ill-

treated the wife and therefore she had left his company.

9. The wife also tendered her evidence on affidavit. The wife

stated in her affidavit that the husband, his parents, his brother and the

wife of his brother had harassed her after the marriage and they used to

make a demand for money. The wife had stated that she had to file the

reports against the husband and his family members in view of the illegal

demands and the ill-treatment meted out by them to her. It is stated that

on 16.07.1998, the husband had driven her out of the matrimonial home.

The wife stated that the husband had re-married and therefore she had

filed proceedings against him under Section 494 of the Penal Code. The

wife stated that she was ready to live with the husband in the

matrimonial home.

In the cross-examination, the wife admitted that there were

constant fights between the parties from 1996. The wife admitted that till

1996, the husband and his family members and the wife were residing

together in the matrimonial home. The wife admitted that from 1996,

FCA 345/14 10 Judgment

both the husband and the wife started residing separately and away from

the joint family. The wife denied the suggestion that there were fights

between the husband and the wife because the husband used to visit his

parents. The wife admitted that she had filed reports against the husband

and his family members and that they were acquitted in the cases filed

against them. The wife admitted that in the complaint filed by her

against the husband under Section 494 of the Penal Code, she had also

joined the other members of the family of the husband, as accused. The

wife admitted that all the other members of the family of the husband

have been discharged from the said case. The wife denied the suggestion

that she had left the company of the husband without any just or

reasonable excuse. The wife denied that she had filed false complaints

against the husband.

10. While appreciating the evidence tendered by the parties, it

would be necessary to take a note that the husband and the wife are

cousins. The father of the wife is the brother of the mother of the

husband. The husband was studying in the house of his maternal uncle,

i.e. the father of the wife before the marriage. The parties not only knew

each other but, were closely related to each other. The marriage was

solemnized between the parties with the consent of the elderly persons in

the family. All was well between the parties till the marriage was

solemnized and after the marriage was solemnized the relationship

FCA 345/14 11 Judgment

between the parties became sour. It is the case of the husband that the

wife did not wish to reside in the joint family of the husband and wanted

to reside with the husband in her parental home. It is pleaded and also

stated by the husband in his evidence that the wife used to pick up

quarrel with the husband and his family members on petty issues and ill-

treated the husband and his parents. Not only did the wife ill-treat the

husband and his parents, the wife also lodged false complaints against the

husband and his family members for the offences punishable under

Section 498-A and 506 of the Penal Code. The husband and his family

members are acquitted in the said case. On a false complaint lodged by

the wife, offence was registered against the husband under Section 107 of

the Code of Criminal Procedure and the Tahsildar had acquitted the

husband in the said case. The wife was instrumental in filing a case

against the husband and his family members under Section 506, 508, 509

of the Penal Code and in that case also, the husband was acquitted. Apart

from the said cases, the wife had also filed proceedings against the

husband for an offence punishable under Section 405 of the Penal Code

and after this appeal was filed, it is informed by the parties, that the

husband is acquitted in that case also. The wife not only filed the

aforesaid cases against the husband who was closely related to her even

before the marriage but also filed a private complaint against him for an

offence punishable under Section 494 of the Penal Code and in those

proceedings, she had joined the parents of the husband, the brother of the

FCA 345/14 12 Judgment

husband and the wife of the brother. The other family members that

were joined as accused were discharged from the said case as per the

order of the trial Court. It is apparent from the aforesaid that the wife

was vindictively filing false cases against the husband and his family

members. Though the wife has pleaded in the written statement that the

husband has re-married, there is no mention of the name of the lady to

whom the husband had re-married. A vague and bald statement is made

by the wife in her written statement that the husband and his family

members used to demand money from her father and since he did not pay

the same, she was harassed by the husband and his family members. The

wife has failed to prove the case pleaded by her. The Family Court rightly

considered these aspects of the matter to hold that the wife had treated

the husband with cruelty and it was not possible for the husband to stay

with the wife under one roof. While holding that the husband was

entitled to a decree of divorce on the ground of cruelty, the Family Court

rightly held that the husband had further proved that the wife had

deserted the husband without any just or reasonable excuse. The wife

had failed to prove the allegation that the husband and his family

members had beaten her on 16.07.1998 and had driven her out of the

matrimonial home. The wife has not led any cogent evidence in support

of her case. The wife has levelled reckless allegations against the

husband in the written statement filed by her and has failed to

substantiate her case by leading cogent evidence. The evidence tendered

FCA 345/14 13 Judgment

by the husband inspires confidence and it appears that the wife has

levelled false allegations against the husband and his family members not

only in the complaints filed by her against them but also in the written

statement and has failed to prove the same. Since the wife had failed to

prove that she was beaten up by the husband and his family members on

16.07.1998 and that she was compelled to leave the house due to the

harassment by the husband and his family members, it would be

necessary to hold that the wife had left the company of the husband

without any just and reasonable excuse. The wife had not joined the

company of the husband since 16.07.1998 and has spent her time only in

filing false cases against the husband and his family members. The

Family Court has rightly held that the cases filed by the wife against the

husband would outlive the parties by the time they reach the stage of

attaining finality. We find that the Family Court has rightly granted a

decree of divorce in favour of the husband on the ground of cruelty and

desertion. The appeal filed by the wife is therefore liable to be

dismissed.

11. Hence, we dismiss the family court appeal with no order as to

costs.

              JUDGE                                            JUDGE
APTE