Bombay High Court
Ganesh S/O Marutrao Naik vs Dr. Arti Ganesh Naik on 11 July, 2017
Bench: V.A. Naik
1107FCA221.14-Judgment 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 221 OF 2014
APPELLANT :- Ganesh S/o Marutrao Naik, Aged about 35
years, Occ. Business, R/o Triveni Apartment,
First Floor, N.M.Joshi Marg, Bhaykhala, West
Mumbai.
...VERSUS...
RESPONDENT :- Dr.Arti Ganesh Naik, Aged about 31 years,
Occ. Medical Practitioner, R/o Dutta Krupa,
Jatharpeth, Oak Marg,Akola.
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Mrs. R.S.Sirpurkar, counsel for the appellant.
None for the respondent.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 11.07.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this family court appeal, the appellant-husband
challenges the judgment of the Family Court dated 11/11/2011,
allowing a petition filed by the respondent-wife for a decree of divorce
on the ground of cruelty.
2. Few facts giving rise to the family court appeal are stated
thus :-
1107FCA221.14-Judgment 2/11
The appellant-husband and the respondent-wife were
married according to Hindu rites and customs, on 04/03/2001.
Hereinafter, the parties are referred to as the 'husband' and 'wife' for the
sake of convenience. After the marriage, the parties resided in the joint
family of the husband at Mumbai. A girl child named Mansi was born
from the wedlock. The custody of the girl child is with the wife. After
the marriage, the wife was pursuing her education in the diploma
course in anesthesia at Nanavati Hospital. In the petition filed by the
wife for a decree of divorce on the ground of cruelty, it is pleaded that
when she returned to the matrimonial home after completing her
diploma course, the husband and his parents used to taunt her that her
standard of living was much lower than the standard of living of the
husband and his family. It is pleaded that the husband and his parents
picked up a quarrel with the wife without any rhyme or reason and
when her parents visited the matrimonial home, she was not allowed to
serve meals or even tea to them. The wife pleaded that the said act on
the part of the husband and his family members was very insulting. It is
pleaded that the husband always spoke to the wife in filthy language
and though the husband and the wife started residing separately from
the joint family from 03/08/2002, the husband did not permit her to
carry any of her belongings to their house at Andheri. It is pleaded that
the husband had left the job and used to stay in the house for the entire
1107FCA221.14-Judgment 3/11
day. It is pleaded that the husband always suspected the character of
the wife and accused her of having an affair. It is pleaded that the
husband used to abuse the wife and beat her mercilessly on the
allegation that the wife was having an affair. It is pleaded by the wife
that she was driven out of the matrimonial home at night for no fault of
hers. It is pleaded that the husband used to demand that the marriage
between the parties should be dissolved. It is pleaded that the husband
used to threaten that he would kill her. The wife pleaded that
sometimes she had to starve in the matrimonial home. It is pleaded
that due to the merciless beating by the husband and his act of driving
her out of the matrimonial home, she was required to sleep in the
women's hostel at Mumbai. The wife pleaded that the husband had
filed a petition against her for a decree of divorce and in the said
petition, he had levelled reckless allegations against her in respect of
her illicit relationship with Dr. Kibey, who lived near her parental
house. The wife pleaded that though Dr.Kibey was an old man and a
fatherly figure, the husband did not accept the relationship between
them. On the aforesaid pleadings, the wife sought a decree of divorce
on the ground of cruelty.
3. The husband filed the written statement and denied the
claim of the wife. The husband levelled serious allegations against the
1107FCA221.14-Judgment 4/11
wife in his written statement. The husband pleaded in his written
statement that the wife was very broad minded and her culture was
western. The husband pleaded that she was not fit to become the wife
of the husband and the daughter-in-law of his parents. The husband
pleaded that the wife had developed undue intimacy and closeness with
Dr. Kibey, who had a great influence upon the wife. The husband
pleaded that though Dr. Kibey was very old and as per the age of the
doctor, he was a fatherly figure, the relationship between Dr.Kibey and
the wife was not normal. It is pleaded that whenever the husband
asked the wife not to maintain relationship with Dr.Kibey, she
threatened the husband that she would commit suicide. It is pleaded
that once, when the husband, the wife and Dr.Kibey were travelling in a
taxi, he was asked to sit on the front seat and Dr.Kibey and the wife
were sitting on the rear seat and they were holding each others arms
over the shoulder. It is pleaded that it was difficult for the husband to
see his wife in the arms of a third person. The husband pleaded that to
complement each other, Dr. Kibey and the wife would kiss each other. It
is pleaded that the meetings between the wife and Dr.Kibey were very
frequent. It is pleaded that when Dr.Kibey, the husband, the wife and
the husband's sister went for having ice-cream, Dr. Kibey purchased
three ice-cream, one for Dr.Kibey and the wife, the other for the
husband and the third for the husband's sister. It is pleaded that the
1107FCA221.14-Judgment 5/11
wife and Dr.Kibey were eating an ice-cream by using one spoon in the
presence of the husband and his sister. It is pleaded that the
relationship between the parties was spoiled due to Dr.Kibey. It is
pleaded that though Dr. Kibey was a practicing doctor at Akola, when
the wife went to Akola to her parental home, Dr.Kibey used to move
around the wife from morning till late night. It is pleaded that the
husband was informed by the wife that she was very happy with
Dr.Kibey and she did not want any male member in her life except
Dr.Kibey and that she had married him only with a view to give birth to
a child. The husband sought for the dismissal of the petition filed by
the wife and sought a decree of restitution of conjugal rights.
4. On the aforesaid pleadings of the parties, the family court
framed the issues and on an appreciation of the evidence tendered by
the wife held that the wife was entitled to a decree of divorce on the
ground of cruelty and the husband was not entitled to a decree of
restitution of conjugal rights. The judgment of the family court is
challenged by the husband in this family court appeal.
5. Mrs.Sirpurkar, the learned counsel for the husband,
submitted that the family court was not justified in granting a decree of
divorce in the petition filed by the wife without granting an opportunity
1107FCA221.14-Judgment 6/11
to the husband to tender his evidence or to cross-examine the wife. It is
stated that the petition filed by the wife was allowed solely on the basis
of her evidence on affidavit. It is submitted that had the husband got
an opportunity of proving his case, the husband could have proved that
the wife had treated him with cruelty. It is submitted that the family
court has erroneously held that the allegations made by the husband in
his written statement against the wife would tantamount to cruelty. It
is submitted that the family court was not justified in holding that the
intention of the husband in seeking a decree of restitution of conjugal
rights was not genuine as he had earlier filed proceedings against the
wife for a decree of divorce and the said proceedings were dismissed.
The learned counsel sought for the reversal of the judgment of the
family court and a decree of restitution of conjugal rights in favour of
the husband.
6. On hearing the learned counsel for the husband and on a
perusal of the record and proceedings, it appears that the following
points arise for determination in this family court appeal:-
(I) Whether the wife is successful in proving that the
husband had treated her with cruelty?
1107FCA221.14-Judgment 7/11
(II) Whether the wife was entitled to a decree of
divorce?
(III) What order?
7. We have narrated the pleadings of the parties in the
earlier part of the judgment. It would therefore not be necessary to
reiterate the facts pleaded by the parties. To prove her case, the wife
had filed the evidence on affidavit. She had narrated the facts pleaded
by her in the petition, in her evidence on affidavit. We have perused
the roznama. Though the husband was granted ample opportunity to
cross-examine the wife and also tender his evidence, the husband did
not avail the opportunity. We do not find on a perusal of the roznama
that the husband was not granted an opportunity to cross-examine the
wife or to examine himself or his witnesses. When the matter was listed
for the cross-examination of the wife, the husband and his counsel
remained absent. The matter was adjourned from time to time to
secure the presence of the husband and his counsel but without success.
At every stage, i.e. at the state of cross-examination of the wife, at the
stage of tendering of evidence on behalf of the husband and also at the
stage of hearing, the husband did not avail the opportunity granted by
the court. It cannot be said in the circumstances of the case that the
family court has allowed the petition filed by the wife without granting
1107FCA221.14-Judgment 8/11
a fair opportunity to the husband. Perusal of the roznama clearly shows
that there was no other alternative for the family court but to decide the
petition filed by the wife, ex parte. The family court has rightly held that
in the absence of cross-examination of the wife by the husband, the
evidence tendered by the wife has gone unchallenged. The wife has
categorically stated in her evidence on affidavit that the husband used
to suspect her character and used to beat her mercilessly. The wife has
stated in her evidence that the husband and his parents used to taunt
the wife and beat her mercilessly. It is stated by the wife in her
evidence that the husband and his family members used to drive her out
of the matrimonial house during the night and she was required to stay
in the women's hostel. It is stated by the wife that the husband always
suspected her character and accused her of having an affair. The wife
had proved her case by tendering evidence in support of her pleadings.
The husband has levelled reckless allegations against the wife in the
written statement. The husband did not tender any evidence to prove
the allegations. It is well settled that levelling reckless allegations
against the wife, pertaining to her moral character in the written
statement and failing to prove the same would tantamount to cruelty.
It was necessary for the husband to have entered into the witness box
when he had levelled serious allegations about the illicit relationship
between the wife and Dr. Kibey. It has come on the record that Dr.
1107FCA221.14-Judgment 9/11
Kibey, who was residing in the neighbourhood of the parents of the wife
was more than 80 years of age at the relevant time. The husband has
however levelled serious allegations pertaining to the illicit relationship
between Dr.Kibey and the wife. The husband has pleaded in his written
statement that he saw the wife in the arms of Dr.Kibey when they were
travelling in a taxi. The husband has pleaded that Dr.Kibey purchased
one ice-cream for the wife and Dr.Kibey and both of them ate the
ice-cream with one spoon in the presence of the husband and his sister
as if they were a young couple madly in love with each other. The
husband has pleaded that Dr.Kibey used to call the wife at odd hours
and the wife used to enjoy talking with Dr.Kibey on S.T.D. for a long
time. The husband had pleaded that Dr. Kibey and the wife used to kiss
each other instead of complementing each other in words. The husband
had pleaded that though Dr.Kibey was a practicing doctor, he used to
leave his work and move around the wife from morning till late night
when the wife used to go to her parental house. The husband had
pleaded that the wife had clearly told him that she was happy with her
relationship with Dr.Kibey and that she did not need any other male
member in her life and that she had got married with the husband only
to procure a child. The allegations levelled by the husband against the
wife are very serious. They cast aspersions on the moral character of
the wife. It was extremely necessary for the husband to have entered
1107FCA221.14-Judgment 10/11
into the witness box and to have proved his case, as pleaded in the
written statement, if it was true. We find that the husband had filed a
petition against the wife for a decree of divorce and in that petition he
had levelled similar allegations against the wife, pertaining to her
character. Though the said petition was dismissed, the husband
continued to level filthy allegations against the wife, though Dr.Kibey,
with whom the wife is said to have had the illicit relationship was more
than a fatherly figure. Dr.Kibey was nearly 75 years of age when the
parties had married. It is very unfortunate that the husband has levelled
reckless allegations against the wife after the parties could not pull on
well and were unable to bond with each other. It is well settled that
levelling serious allegations pertaining to the moral character of a
spouse and failing to prove the same would tantamount to cruelty. The
family court has rightly considered the well settled position of law in
this regard to grant a decree of divorce in favour of the wife after
observing that by levelling such allegations against the wife in respect of
her moral character, the husband had inflicted cruelty on the wife. The
wife has proved the allegations levelled by her against the husband and
his family members by leading cogent evidence. The case of the wife
that the husband had treated her with cruelty is further proved in view
of the levelling of reckless allegations by the husband against the wife in
the written statement and failing to prove the same. The judgment of
1107FCA221.14-Judgment 11/11
the family court is just and proper and the view expressed by the family
court is not a possible view but is the only view that could have been
expressed by a court, in the circumstances of the case.
In the result, the family court appeal is dismissed with no
order as to costs.
JUDGE JUDGE
KHUNTE
