Smt. Sangita W/O Sushil Thathe vs Shri. Sushil S/O Vikram Tathe
2017 Latest Caselaw 3965 Bom

                                                        1                    J-FCA-271-14.odt

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

                    FAMILY COURT APPEAL NO. 271 OF 2014

 Smt. Sangita w/o Sushil Tathe,
 Aged about : 36 years, Occ. Nil,
 R/o C/o Fule Working Women
 Hostel, Reshimbagh, Nagpur-09.                                   ..... APPELLANT

                                 ...V E R S U S...

 Shri Sushil s/o Vikram Tathe,
 Aged about : 45 years,
 Occ. Police Constable,
 R/o Plot No.12, Kirti Nagar,
 I.T.I. Road, Digjori, Nagpur.                                    ... RESPONDENT

 -------------------------------------------------------------------------------------------
 Mrs. P. M. Chandekar, Advocate for the appellant.
 None for the respondent.
 -------------------------------------------------------------------------------------------
                                  CORAM:-    
                                             SMT. VASANTI  A  NAIK &
                                                 ARUN D. UPADHYE, JJ.

DATED :-

04/07/2017.

ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)

By this family court appeal, the appellant-Wife has

challenged the judgment of the Family Court, dated 12.04.2013,

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

the ground of cruelty.

The appellant-Wife and the respondent-Husband were

married at Nagpur on 25.04.1999 according to Hindu rites and custom

2 J-FCA-271-14.odt

and a girl and a boy are born from the said wedlock. In the petition

filed by the wife for a decree of divorce on the ground of cruelty, the

wife pleaded that the husband was very short tempered and had a very

suspicious nature. It is pleaded that without any fault on the part of the

wife and the visitors who came to the matrimonial house, the husband

used to look at the wife and the visitors with suspicion. It is pleaded

that the husband used to threaten the wife of dire consequences if she

visited the house of her parents. It is pleaded that the husband was a

habitual drunkard and used to threaten the wife during the last two

years before the filing of the petition that he would die by consuming

poison and would hold the wife responsible for his death. It is pleaded

that the husband was in the police department and was of the firm

opinion that no Court can harm him and no case could be registered

against him. It is pleaded that the husband used to drag the wife by

holding her hair to the front of their house, with the result that all the

persons in the neighbourhood would witness the harassment of the wife

by the husband. It is pleaded that because of the said behaviour of the

husband, the children were affected. It is pleaded that due to the ill-

treatment by the husband, the wife had consumed poison on

03.03.2010 and was admitted to Gaikwad Critical Care at Sakkardara,

Nagpur and a F.I.R. was registered against the husband in Hudkeshwar

Police Station. It is pleaded that the wife tried her level best to save the

marriage but the husband was ill-treating the wife, both mentally and

3 J-FCA-271-14.odt

physically and it was not possible for her to stay with the husband

under one roof. It is pleaded that the cause of action for filing the

petition arose on 03.03.2010 when the wife was compelled to consume

poison because of the ill-treatment meted out by the husband to her.

The wife sought a decree of divorce on the ground of cruelty.

The husband filed the written statement and denied the

claim of the wife. The husband denied all the adverse allegations

levelled against him, in the petition filed by the wife. The husband

denied that he used to consume liquor and beat the wife in an

intoxicated state. The husband denied that the wife had consumed

poison on 03.03.2010. In the specific pleadings, the husband stated

that the wife had filed the petition after eleven years of the marriage on

false and baseless allegations. The husband pleaded that the wife had

filed the petition on the wrongful advice by some persons who wanted

that the marriage should be dissolved.

On the aforesaid pleadings of the parties, the Family Court

framed the issues. The wife tendered her evidence and closed the

evidence on her side. The husband examined himself and also

examined Raghuji Mahaldar, Sudesh Yadav, his daughter Anushree, his

father Vikram and his cousin Anil Umale to defend the petition. On an

appreciation of the evidence on record, the Family Court, by the

4 J-FCA-271-14.odt

judgment dated 12.04.2013, dismissed the petition filed by the wife.

Mrs. Chandekar, the learned counsel for the wife, submitted

that the Family Court was not justified in dismissing the petition filed by

the wife by giving more weightage to the evidence tendered by the

husband and his witnesses. It is submitted that the Family Court has

wrongfully dismissed the petition on the ground that the allegations

levelled by the wife against the husband were very vague and general

and the wife had not specifically pleaded as to how the husband had

treated her with cruelty. It is stated that the Family Court had

erroneously disbelieved the case of the wife that the husband used to

abuse and beat her under the influence of liquor as the wife had not

specifically pleaded about the instances in that regard. It is submitted

that the Family Court has wrongfully disbelieved the case of the wife

that the husband was short tempered and that he ill-treated the wife as

she had stayed in his company for a period of about nine years before

the parties had separated. It is submitted that the Family Court was not

justified in relying on the evidence of the witnesses examined on behalf

of the husband to hold that the husband did not have the habit of

consuming liquor. It is stated that the Family Court has discarded the

case of the wife mainly on the ground that the wife had not specifically

pleaded about the acts which could demonstrate that the husband had

treated the wife with cruelty. It is stated that the Family Court should

5 J-FCA-271-14.odt

have observed that there was no reason for the wife to consume poison

on 03.03.2010 if the husband had not treated her with cruelty. It is

submitted that during the pendency of this family court appeal, the

appeal filed by the wife against the judgment granting a decree of

divorce in favour of the husband was allowed and this Court had set

aside the judgment granting a decree of divorce in favour of the

husband under Section 13(1)(i) of the Hindu Marriage Act. It is

submitted that after the appeal filed by the wife was allowed, the

husband had challenged the judgment of this Court before the Hon'ble

Supreme Court in a special leave petition but the said petition was

dismissed on 09.01.2017 and the judgment of this Court, dated

29.08.2016 was upheld. It is submitted that it is clear from the

judgment rendered by this Court on 29.08.2016, which is a fact that

needs to be noted while considering the claim of the wife for a decree of

divorce, that the husband has treated the wife with cruelty by falsely

levelling allegations against her that she had voluntary sexual

intercourse with her friend Kamlesh. The learned counsel took this

Court through the judgment, dated 29.08.2016 in the appeals filed by

the wife and Kamlesh that has attained finality to canvas that the wife

would be entitled to a decree of divorce as she would not be in a

position to reside with the husband under one roof as he had falsely

levelled the allegation that the wife had voluntary sexual intercourse

with Kamlesh and the said fact was not proved. By relying on the

6 J-FCA-271-14.odt

judgment, dated 29.08.2016 between the parties, the learned counsel

sought a decree of divorce.

None had appeared on behalf of the respondent on

29.06.2017, 30.06.2017 and 03.07.2017, when this appeal was called

for hearing. Despite the grant of several chances, none appears for the

respondent, today also.

On hearing the learned counsel for the wife 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 has proved that the husband
        had treated the wife with cruelty?


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


        III)           What order?

To answer the aforesaid points for determination, it

would be necessary to consider the pleadings of the parties and the

evidence tendered by them. It is an admitted position that the parties

were married at Nagpur on 25/04/1999 according to the Hindu rites

and Customs. The parties resided together for about 10 years when the

7 J-FCA-271-14.odt

wife consumed poison on 03/03/2010 and was admitted to Gaikwad

Critical Care Center, Sakkardara, Nagpur. A FIR was lodged against the

husband in Hudkeshwar Police Station. It is the case of the wife in her

pleadings and also in her evidence that the husband was very hot

tempered and used to abuse and beat the wife. The wife had pleaded

that the husband had a suspicious nature and he used to look with

suspicion at any male who used to come to the matrimonial home or

even outside the matrimonial home. It is the case of the wife that the

husband always suspected the character of the wife. The wife had filed

the petition for divorce on 31/03/2010. The husband had filed the

written statement along with the counter claim on 13/12/2010 seeking

a decree of restitution of conjugal rights. After some evidence was

tendered in the petition filed by the wife for a decree of divorce on the

ground of cruelty, the husband gave up his claim for a decree of

restitution of conjugal rights and tried to amend the written statement

to seek a decree of divorce on the ground that the wife had voluntary

sexual intercourse with her friend Kamlesh during the subsistence of the

marriage between the parties. Since the husband was not permitted to

file a counter claim seeking the prayer for a decree of divorce on the

ground that the wife had voluntary sexual intercourse with Kamlesh

during the subsistence of the marriage, the husband filed a divorce

petition against the wife on 18/08/2012. The divorce petition filed by

the wife was dismissed by the Family Court on 12/04/2013. However,

8 J-FCA-271-14.odt

the petition filed by the husband against the wife for a decree of divorce

on the ground that she had voluntary sexual intercourse with Kamlesh

was allowed and the Family Court dissolved the marriage between the

parties by a decree of divorce under Section 13(1)(i) of the Hindu

Marriage Act on 26/05/2015. The wife as well as Kamlesh with whom

the wife allegedly had voluntary sexual intercourse, filed two separate

appeals against the Judgment by which divorce was granted in favour of

the husband. The said appeals were allowed by the High Court on

29/08/2016 and the decree passed in favour of the husband under

Section 13(1)(i) was set aside. The husband challenged the Judgment

of this Court before the Hon'ble Supreme Court in a Special Leave

Petition but the Special Leave Petition was dismissed on 09/01/2017.

According to the wife, it would be necessary for this Court to consider

the Judgment between the same parties, dated 29/08/2016 that holds

that the husband has failed to prove that the wife had voluntary sexual

intercourse with Kamlesh during the subsistence of the marriage

between the husband and the wife. It is submitted that on the basis of

the said Judgment, a decree of divorce needs to be passed in favour of

the wife, as levelling of false allegations against the character of a

woman and failing to prove the same would itself tantamount to

cruelty.

9 J-FCA-271-14.odt

In the backdrop of the aforesaid facts, it would be

necessary to consider whether the husband had treated the wife with

cruelty. It is the case of the wife in the petition filed by her that the

husband had a suspicious nature and he used to doubt about an illicit

relationship between the wife and even a stranger who came to the

matrimonial home or even came outside the matrimonial home. For

proving the said fact, the wife is the best witness. The wife had

tendered evidence in this regard. Apart from the evidence tendered by

the wife in this case, it would be necessary to consider the Judgment in

the case of the parties, as rendered by this Court on 29/08/2006 in

which this Court has held that the husband has failed to prove that the

wife had voluntary intercourse with Kamlesh during the subsistence of

the marriage between the parties. Levelling of false allegation against

the character of a woman and failing to prove the same would

tantamount to cruelty. This Court has, in the Judgment dated

29/08/2016, in the appeals filed by the wife and Kamlesh held that the

husband has failed to prove that the wife had illicit relationship with

Kamlesh and / or that she had voluntary sexual intercourse with

Kamlesh during the subsistence of her marriage with the husband.

The case of the wife that the husband had treated her

with cruelty is rejected by the Family Court on the ground that the wife

had not substantiated her case in the pleadings by giving specific

10 J-FCA-271-14.odt

instances in respect of the acts of cruelty. The wife has clearly stated

that the husband was a habitual drunkard and in an intoxicated state,

he used to beat the wife by suspecting her character. The evidence of

the wife is discarded by the Family Court as the witnesses examined on

behalf of the husband had denied the same. Merely because the

daughter of the parties, who was admittedly residing with her father for

nearly three years after the separation of the parties and before the

tendering of the evidence had stated that her father did not regularly

consume liquor and beat the wife, the Family Court has observed that

the husband must not have treated the wife with cruelty. Though the

husband had denied that the wife had attempted to commit suicide by

consuming poison on 03/03/2010, there is material on record to show

that the wife was admitted to Gaikwad Hospital after she had consumed

poison and an offence was registered against the husband in the Police

Station. Though it is specifically pleaded by the wife in her petition that

the report was lodged in the Police Station against the husband after

the wife was admitted in the hospital after consuming poison on

03/03/2010, the husband has not denied the said fact in his written

statement. It appears from the evidence tendered by the wife and the

cross-examination of the wife that the husband used to ill-treat the wife

after returning to the house at mid-night and create trouble for the wife

and the neighbours due to his heavy drinking. The wife stated in her

cross-examination that she was beaten, by the husband by using the

11 J-FCA-271-14.odt

third degree method only due to his suspicious nature. The wife

however admitted that she had not mentioned about the third degree

treatment in the pleadings. The wife denied the suggestion that she had

not mentioned about the third degree treatment meted out by the

husband to her as he had not treated her in that fashion. The wife

denied the suggestion that on the instigation of her mother and sister,

she had quarrelled with the husband on account of her niece. The wife

stated in her cross-examination that she had consumed poison. She

however denied the suggestion that she had consumed poison merely

with a view to teach the husband a lesson and file a false complaint

against him. The wife stated in her cross-examination that though the

husband may be ready to take her back to the matrimonial home, she

was not ready to join his company due to his temprament and

behaviour. On a reading of the evidence of the wife, specially the

evidence in her cross-examination, it is clear that the husband had a

suspicious nature and he used to ill-treat the wife in view of the same.

The evidence of the husband and the cross-examination of the wife does

not falsify the case of the wife that the husband had a suspicious nature

and was in the habit of drinking liquor and beating the wife on

suspicion. The father of the husband was examined on behalf of the

husband. The father of the husband had retired as a Head Constable

from the Police Department. He denied the suggestion that he or his son

were addicted to liquor. The father of the husband denied that the

12 J-FCA-271-14.odt

husband used to suspect the character of the wife. On a reading of the

evidence of the witnesses examined on behalf of the husband on one

side and the evidence of the wife on the other, we find that the case of

the wife that the husband had a suspicious nature and that he used to

ill-treat the wife under the influence of liquor is proved by the wife. The

fact that the husband had a suspicious nature could be fortified by the

Judgment dated 29/08/2016, between the parties in the First Appeal

filed by the wife. In the said judgment it is held that the husband had

failed to prove that the wife had voluntary sexual intercourse with

Kamlesh. The husband had gone to the extent of levelling the allegation

that the wife had voluntary sexual intercourse with Kamlesh during the

subsistence of her marriage with the husband. The husband had

however failed to prove the said allegation. It is well settled that

levelling reckless allegations in respect of the character of the spouse

and failing to prove the same would tantamount to cruelty. The

Judgment rendered by this Court in the Family Court Appeal has

attained finality after the Special Leave Petition filed by the husband

against the same is dismissed. It is surprising that though the parties

had prepared the consent terms before the Counsellor of the Family

Court on 08/02/2012 that the marriage between the parties should be

dissolved on the terms mentioned in the compromise, the compromise

was not effected by the husband. It is surprising that the husband was

not ready to consent to a decree of divorce when the wife had filed this

13 J-FCA-271-14.odt

petition for a decree of divorce. The husband had also desired that the

marriage solemnized between the parties should be dissolved by a

decree of divorce but he desired that the decree should be passed under

the provisions of Section 13(1)(i) of the Hindu Marriage Act. The

husband was bent upon proving that the wife had voluntary sexual

intercourse with her friend Kamlesh during the subsistence of the

marriage between the parties. It is surprising that both the parties

desired that the marriage should be dissolved but the wife desired that

the decree should be granted on the ground of cruelty and the husband

desired that it should be granted on the ground that the wife had

voluntary sexual intercourse with another man during the subsistence of

the marriage between the parties. The parties ought to have settled the

matter between them as they had decided to do so, by preparing the

compromise terms on 08/02/2012. However, the husband withdrew

from the said compromise and desired that a decree of divorce be

passed in his favour on the ground that the wife had voluntary sexual

intercourse with another man during the subsistence of their marriage.

The husband had filed the petition for a decree of divorce under Section

13 (1) (i) of the Hindu Marriage Act. That the Judgment in the said

case would be a pointer for proving the fact that the nature of the

husband was suspicious and that he used to ill-treat the wife due to his

suspicious nature. In the circumstances of the case, it would be

necessary to grant a decree of divorce in the petition filed by the wife.

14 J-FCA-271-14.odt

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

The marriage solemnized between the parties on 25/04/1999 is

dissolved by a decree of divorce under Section 13 (1) (i-a) of the Hindu

Marriage Act. In the circumstances of the case there would be no order

as to costs.

                      JUDGE                               JUDGE




 Choulwar